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
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)
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. ”
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
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
- 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
© 1 Crown Office Row
Thank you for joining us, do you have any similar experiences, tips or questions you want to share?
Jo Moore, Rajkiran Barhey & Thomas Beamont
Catch up on the latest legal news with our UK Human Rights Blog and podcast, Law Pod UK, available on your favourite podcast platforms (iTunes, Audioboom, Spotify.)
Keep up to date with the latest legal news via our Quarterly Medical Law Review, available on our website or by pre-release email (subscribe: [email protected])
Top Related