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Are You Telling the Truth?

Most solicitors don’t ask this question very often. If we do, the reply may be unreliable!

As litigators, our job is to advise clients of the merits of their case. This involves an assessment of their veracity: what impression will they make at trial?

Assessment of a client’s credibility is also relevant to whether we take the financial risk of entering into a conditional or contingency fee arrangement with them.

But we are not detectives, ‘selling jail’, as a detective chief inspector once described interrogation. This is not part of our training. A solicitor’s role is not to decide the truth, but rather to present our client’s case at trial or settlement negotiations in the best possible light.

One way we do this is to ‘test’ the client’s response to the other’s party’s allegations and unfavourable evidence. This not only provides the basis for cross-examination of the other party, but helps the client to prepare for his or her own cross-examination. One of my clients paused a long time before replying to a critical question. ‘I hope you don’t pause that long in court’, counsel suggested helpfully. This defendant decided to settle.

Only a judge (or jury) has an opportunity to see both parties and to balance the credibility of one against another. How does a judge decide which witness is honest and which dishonest; which reliable and which unreliable?

We solicitors need to know, to advise our clients on their prospects of success. If we get this advice ‘blatantly wrong’, we are liable in negligence: Langsam v Beachcroft LLP and Others [2012] EWCA Civ 1230.

Lord Bingham of Cornhill discussed credibility in ‘The Judge as Juror: The Judicial Determination of Factual Issues’ published in ‘The Business of Judging’ Oxford 2000. He suggests the starting point is to look as facts which are agreed or incontrovertible and independent of human recollection, such as documents written before a dispute arises. Lady Justice Arden echoes this theme, ‘Contemporaneous written documentation is of the very greatest importance in assessing credibility’  Welton v Ahmed [2011] EWCA Civ.610 paragraph 14.

This is well illustrated in the recent restrictive covenant case of Safetynet Security v Leonard Coppage [2012] EWHC B11 (Mercantile). Five of the defendant’s customers swore that the defendant had no contact with them ahead of their decision to terminate their contract with the claimant. Unfortunately for the defendant, specific disclosure unveiled that there were 135 calls and 175 texts. No wonder they were found to ‘lack any credibility’ and the defence failed.

Lord Bingham’s paper suggests that there are five main tests as to whether a witness is reliable or not:

  1. Consistency of the witness’s evidence with what is agreed or clearly shown by other evidence to have occurred
  2. The internal consistency of the witness’s evidence
  3. Consistency with what the witness has said on other occasions
  4. The credit of the witness in relation to matters not germane to the litigation; and
  5. The demeanour of the witness

These tests were expressed slightly differently by Lord Pearce in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at p 431: ‘First, Is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling somewhat less than the truth on this occasion, or though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intention of the conversations correctly and, if so, has his memory correctly retained them…..has his recollection been subsequently altered by unconscious bias or wishful thinking or by over much discussion with others?’

A judge must also consider motive: ‘…reference to the objective facts and documents, to the witnesses’ motives and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth’ per Lord Goff in Grace Shipping v Sharp [1987] 1 Lloyd’s Law Rep 207 at 215-6. A financial stake or relationship may influence a witness’s evidence, consciously or unconsciously.

One of my clients, a young photographer, was promised a pay rise upon promotion to manage a studio. Eventually, after months of prevarication, the employer sat down with her to explain why she would not receive the promised pay rise. Unbeknown to either of them, a colleague switched on the studio video so that the meeting was recorded. The employment judge, awarding her compensation, commented that the recording had been extremely helpful, ‘as we have to spend many hours within these walls trying to resolve disputes about what happened’.

A practical point here is to encourage prospective witnesses to record discussions, on paper or electronically. The one who tells the best story wins!

Credibility is not just an issue for witnesses. It is important for advocates, too, to win ‘the quality of being believed or trusted, of being convincing or believable’  (Wikipedia definition). This means sticking to the issues and avoiding bogus arguments, unlike my learned friend who submitted that the judge should ignore the authorities!

Geoffrey Bignell, Chairman of Just Employment Solicitors

 

 

 

Geoffrey Bignell, Chairman, Just Employment Solicitors.

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