Witness Evidence: From the First Call to the Courtroom

© 1 Crown Office Row

Jo Moore

Rajkiran Barhey

Thomas Beamont

Witness Evidence: From the First Call to the Courtroom

• Lay and expert witness evidence

• Obtaining evidence

• Statement production

• Pre-trial preparation

• Witnesses in the courtroom

• Identify the pillars

• Identify the narrative

Trial

When things go wrong

• Consistency, consistency, consistencyCXB v North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB):“The most significant aspect that, in my judgment, undermines the credibility of the parents' account is that each of them have changed their account of the most important events in what I consider to be two highly material ways. The claimant's mother stated in her witness statement that every time she saw a midwife or doctor she mentioned that she would really like a caesarean section… However, examined-in-chief ...she sought to modify or qualify this by saying that her actual and stated preference was always what was safest for the babies. In cross-examination she said that she wanted a caesarean section if either of the children were in anything other than a head down position” ([15])”

• Precision• Considering all the evidence

Sally Richardson v Newcastle Upon Tyne Hospitals Foundation Trust [2018] WLUK 556 (Recorder Cox QC)

• Taking stock of the position

• Lay witnesses

• Documentation

• Experts

Hearing Preparation

• The pillars

• Where is it found

• Updates and gaps

Taking stock of the position

Lay Witnesses

• Trained v Prepared

• Globe Motors & Oth v TRW Ltd & Oth [2014] EWHC 3718 (Comm)

“All the witnesses of fact were clear, honest and straightforward. Some of Globe's witnesses were hampered by the effects of some external 'witness preparation training' which their integrity and common sense fortunately enabled them to shake off as their cross-examination continued. Thus at first Mr McHenry and Mr Keegan appeared reluctant to answer questions clearly and were prone to ask for these to be repeated when witnesses of their calibre should not have had difficulty in understanding what was being asked. ”

Lay Witnesses

• Statement

• Documents

• Answering questions

Trial bundles - Core and Supplementary

Weathford -v- Hydropath [2014] EWHC 3243 (TCC)

(a) As seems to be increasingly common, a very large number of contemporaneous documents have been placed before the Court of which a small fraction have proved to be relevant and have needed to be deployed. Out of the 15,000 such pages of documentation, at most about 1,000 are relevant. This is a waste of the parties’ money and time and also involves a waste of judicial and other court staff time. There was no core bundle, other than that which I prepared from documents referred to by Counsel at the trial (about 350 pages)

Documentation

Your Experts

● Update

● Revisit

● Narrow

● Meet

● Review

● Scrutinise

Their Experts

Their Experts

● Distil

● Check for gaps

● Review

● Investigate the premise

1) The very first contact with the client;

2) Instructing experts;

3) Getting together expert and witness evidence in order to

draft pleadings;

4) Drafting witness statements for service;

5) Getting expert reports ready for service.

The Early Stages

• Get as much information as possible

• Reasonable? Plausible?

• Chronology

• Documentary evidence

First Contact

Chronology

Try and get RCAs/SUIs first

Be clear and specific

Send them everything

Stay wide

Ask around

Check discipline/expertise

• Does it make sense?

• Hypotheticals

• Answered the question?

Instructing Experts

• No real substitute

• Test, test, test

• ‘Draft mantra’

Conference

• Make sure everything is in good shape

• Makes life easier for everyone

Pleadings

- Focus

- Identified all witnesses? Vulnerable?

- Facts

- Tone

- Consistency - but not too consistent

- Deal with problems head on

- Presentation

Statements

• Accurate

• Seen all the documents?

• Check list of docs

• Copy and paste - run searches

• Consistency

• Gaps

Expert reports

Mantra

Frontload the work - stitch in time saves nine

Minimises risk of applications later down the line

More likely to avoid unpleasant surprises

Conclusion

Witness Evidence: From the First Call to the Courtroom

Questions?

© 1 Crown Office Row

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Jo Moore, Rajkiran Barhey & Thomas Beamont

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