Witnesses with capacity issues – Obtaining the best evidence
Anna O’Carroll
Our series focused on witness statements considers the challenges encountered by practitioners across a range of different dispute resolution specialities whilst preparing witness evidence. In this blog Ben Atkin explores the challenge of witness evidence presentation.
It is an unfortunate truth that the success of an entire claim can turn on the evidence provided by a litigant or witness in the witness box.
Whilst lawyers are involved in all elements of preparation, including the strategy and logistics of the litigation and trial - rightly or wrongly, barristers and solicitors are forbidden from preparing, particularly over-preparing, witnesses for the questions which they are likely to receive and how to answer them.
The reason for that is rooted in the desire to obtain a just outcome - and the view that coaching a witness is neither right nor fair. The court’s role is to decide based on the facts and evidence. If evidence has been skewed or manipulated, this could be damaging to the credibility of the witness. If it is not discovered, it could result in an unjust outcome because it is based on something which is arguably false.
A quirk in the above rules is that it is permissible for a witness to receive the benefit of a third-party service known as witness training or witness familiarisation. It typically involves half a day to a day of the future witness being asked questions unrelated to the claim in a courtroom-style so that the actual cross-examination is less intimidating.
A cautionary tale was recently handed down in the case of Phones 4U Limited (In Administration) v EE Limited & Ors [2023] EWHC 2826 (Ch). In his judgment, the Judge expressed a series of concerns that receipt of witness training / a witness familiarisation service can have the unintended effect of giving the impression that the witness is more confident in their recollection than they are, because they have been trained to use a certain tone or body language when answering questions in that format. That can produce a false result and does not assist the court.
What can we learn from this? A witness who is afraid of the process will not give their best evidence and may genuinely benefit from some practice in an adversarial environment, as they may be of greater assistance to the court if they are more prepared. That said, too much practice could result in the witness not performing to the best of their ability. It is a difficult balance to achieve and getting it wrong could result in a case being lost. The court wants the truth and wants lawyers to help it to find it.
The answer is, therefore, that these decisions must be considered on a case by case basis. Whilst there is no property in a witness (i.e. neither side can lay claim to them), it is usually the solicitor for the party who has prepared the witness statement that is calling that witness. In the process of taking that written evidence long before the trial, there is ample opportunity to assess that individual’s strengths and weaknesses in presentation and how their evidence is likely to be received by the court. Depending upon that assessment, a considered conclusion can be reached as to what is likely to help and, conversely, what is likely to hinder.
further information
If you have any questions or concerns about the topics raised in this blog, please contact Ben Atkin.
about the author
Ben Atkin is a senior litigation lawyer and solicitor advocate in the Dispute Resolution team. He advises clients on a wide variety of matters including corporate/commercial disputes, contentious intellectual property, and media related litigation including in relation to defamation, libel and privacy matters, many of which have a high profile in the national press.
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
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