The importance of being honest: how credible is your witness?

Court proceedings can be stressful.  This is particularly true for matters outside of your control: you may think you know your witnesses and what their evidence is, but once they are in the box, they are on their own.  Some people excel as witnesses.  Others are like watching a train crash in slow motion.

A recent case concerning a claim by a commercial agent has highlighted the importance of credible witnesses.

In Lawlor v Sandvik Mining and Construction the High Court considered whether Spanish or English law applied to an oral commercial agency arrangement between the parties. Unfortunately for the agent claimant, the judge held that the oral evidence given by Mr Lawlor was “inaccurate and untruthful”.

The judge deemed Mr Lawlor’s evidence as “inconsistent and improbable”, mostly in respect of his evidence regarding his country of residence, his accounts and tax affairs.  Ultimately, the judge concluded that Mr Lawlor was “prepared to give untruthful evidence to bolster his case”.

The judge agreed with the Defendant and concluded that Spanish law applied (which meant Mr Lawlor was more likely to receive less compensation for termination of the agency agreement than he would under English law).  Interestingly, the judge further observed that, as Mr Lawlor appeared not to have paid any tax during the life of the agency, he was minded to decline to permit Mr Lawlor from proceeding with his claim until he satisfied the court that full declarations of his income had been made!

Mr Lawlor’s unreliable evidence played a key part in the judge’s mind in reaching this decision.

This can be compared with The Royal Bank of Scotland v Highland Financial Partners LP where RBS lost its application for an injunction on the basis that its key witness was deemed to have “unclean hands”.   “Unclean hands” can defeat a party’s entitlement to equitable relief, on the basis that their actions have been inequitable, which in plain English means they have behaved dishonestly in some way.

RBS’ main witness, Mr Griffiths, who was an RBS employee and who RBS put forward to provide their evidence, had lied whilst giving evidence at a previous hearing in the same proceedings.  Mr Griffiths repeated the lie at the hearing of the injunction application.  RBS did not correct Mr Griffiths’ lie at any stage and asserted that he was a truthful witness.

The judge held that had Mr Griffiths “washed his hands”, i.e. come clean, the outcome for RBS may have been different.

What can we learn from these cases?

Choose your witnesses carefully:

• Avoid those who are unreliable or dishonest – judges do not warm to such characters.
• Try to avoid those who have a tendency to crack under pressure.  In the witness box they can come across as contradictory and unsure, which will create doubt in the judge’s mind.
• Avoid those who do not want to assist.  Forcing someone to give evidence on your behalf is not a good idea.  They are unlikely to give helpful evidence if you have coerced them, and with a good barrister on the other side questioning them, they could do more damage to your case than good.

If you are acting as a witness:

• Check and then check again your witness statement.
• If you are giving evidence, make sure you are happy that the contents of your witness statement are all true and correct.
• If lawyers have drafted it for you, make sure you understand and are comfortable with the wording that has been used.
• In most cases, you will sign your witness statement several months or more in advance of the trial.  So, it is a good idea to regularly check your statement to ensure you are still happy with the contents and that it remains true.

Recognise that the imagination grows wilder as the memory fades – a trait which is not limited to politicians and government ministers!

• To forget is human, to have contemporaneous notes is divine.  It is always advisable, whether or not litigation is contemplated, to keep notes of meetings or telephone calls that address anything significant: contract negotiations or variations, commission levels, terminating an agreement. The judge will always attach more weight to contemporaneous notes than oral evidence as a more accurate account of what was said at the time.
• When giving a statement or oral evidence in court, state the facts as they are or as you recall: do not just say what you think your party wants you to say.  If you cannot remember something, say so.

Do not lie:

• Whether intentionally or not, avoid trying to mould your evidence to your party’s case.  You may damage your credibility as a witness and, worse, damage your party’s case.
• The RBS case shows that lying could ultimately cause you to lose your case.  The Lawlor case demonstrates that giving improbable/untruthful evidence could cause the judge to raise wider questions about your conduct, which may not be directly relevant to the case.
• Most importantly, lying whilst giving evidence in court is a criminal offence.  Andy Coulson’s recent tribulation is a good example of the court not being afraid to issue a warrant for your arrest if it considers that you have lied under oath