the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Claimant’s solicitors pay wasted costs in RTA case

  The defendant insurers in the case of Rasoul v Linkevicius (5th October 2012, Unreported), successfully obtained a wasted costs order against claimant solicitors in an RTA claim. The case is a warning to claimant solicitors in RTA claims where there is an allegation of fraud and parties/witnesses who do not speak English. For defendants it is a lesson in how clear allegations set out from early on can have devastating consequences.  The background facts are similar to those commonly encountered in practice. Following the RTA correspondence ensued between the claimant’s solicitors and the defendant insurers. A modest PI claim was made and the insurers questioned the bona fides of the claim. The Defence pleaded fraud clearly against the claimant. He served a witness statement which did not have an integral statement of truth – the statement appeared on a separate sheet of paper rather than being part of the body of the statement itself. Two witnesses provided statements with statements of truth. At trial the claimant gave no evidence as only spoke Kurdish and was illiterate. His statement had been in English and not translated. The husband and wife witnesses were Kurdish. The husband spoke reasonable English but had given his statement over the phone to a solicitor he had not met and at trial he said that his statement was a substantial expansion of what he told the solicitor. The other witness (his wife) spoke no English – her husband translated for her whilst the solicitor took the statement over the phone. She gave evidence that she had never spoken to the solicitor before the statement arrived. Unsurprisingly the case was dismissed and the judge referred to either the extreme incompetence on the part of the solicitors or an attempt to establish a case on fabricated evidence. The insurer made an application for a waste costs order against the solicitors. The judge made an order on the basis that there was no evidence of a proper signed statement from the claimant or the witness taken before proceedings were issued. Although an interpreter turned up at trial he was not allowed to be used as there had been no order relating to his attendance. The judge was critical that the witnesses were not seen face to face by the solicitors given the allegations of fraud. He concluded that proper competent work by the solicitors would have ensured that the case collapsed long before the trial took place. Defendants will be alert to the possibility of pursuing claimant solicitors where fraud has been alleged, there has been incompetence on the part of claimant solicitors which, had it not taken place, would have been likely to have meant the case would not have gone ahead. Claimants will want to see witnesses and take statements face to face where there are allegations of fraud. They must ensure that a proper ‘integral’ statement of truth is signed on the witness statement. If someone is unable to speak English it is essential that a translator is involved in the process of taking the statement, that the statement is translated, the translator makes an appropriate statement (see Practice Direction to Part 32) and the presence of a translator at trial is anticipated by a court order. Careful preparation needs to be undertaken so that solicitors can protect themselves by showing that a witness did give the evidence set out in the statement – even if they deny it at trial and seek to blame it on the solicitors.  

What's in a name?

  On 22 March, after 200 years of being called Cadbury, Kraft, the US food conglomerate which bought the Cadbury business in 2010, is changing its name to - Mondelez (pronounced mohn-dah-LEEZ) International.   The article I read suggests this means delicious world – “monde” coming, I suppose, from the French (or perhaps the Latin) for world and “delez” being a diminutive (or it could be “street” - I would need to check) for delicious. Apparently it is the result of suggestions by two different Kraft employees based in Chicago and Vienna respectively.   I was reminded of this when I read a thoughtful article in the Law Society Gazette on 5 April by District Judge Richard Chapman, the new president of the Association of Her Majesty’s District Judges.   http://www.lawgazette.co.uk/opinion/comment/solicitors-can-help-litigants-person-prepare-their-day-court   Judge Chapman reminds those who did not know that litigants in person are also changing their name - to self-represented litigants or SRLs.   SRLs are likely to feature increasingly in the courts. In November 2011 the Civil Justice Council published a helpful report on “Access to Justice for Litigants in Person”.   http://www.judiciary.gov.uk/about-the-judiciary/advisory-bodies/cjc   This is well worth downloading and filing as it contains amongst other goodies a “nutshell” guide for SRLs and in Appendix 2 “Suggested Draft Guidance for legal professionals representing against a self-represented litigant”   The report points out in the Overview in Chapter 2 that “every informed prediction is that, by reason of the forthcoming reductions and changes in legal aid, the number of self-represented litigants will increase, and on a considerable scale. Such litigants will be the rule rather than the exception” (my emphasis).   This prospect clearly concerns Judge Chapman who says that “judges like me are spending more and more of our time having to deal with litigants who simply do not know the law, have never heard of the Civil Procedure Rules 1998 … and have breached most of the case management directions”.   Any advocate is already under a duty to do what they reasonably can to ensure that an SRL has a fair opportunity to prepare and put his or her case. However, the likelihood is that Judge Chapman and other judges at all levels will increasingly be looking for help from lawyers in managing the changes which will follow the new “funding landscape”.    As Judge Chapman ruefully observes:   ”A new name but old problems”.   [Image - thechocolatereview.net]

"Of course I'm sure: I remember it like it was yesterday" - Vagaries of Recollection and the Problem with Witness Evidence

The scenario is common during any trial: two witnesses give evidence who were both present at a particular event but whose recollection about what was said or what they saw is so completely at odds one wonders whether they witnessed the same thing.  Whether it is a dispute between a claimant and a doctor about what was said during a consultation, the drivers of two cars that have collided about who was positioned where on the road or two parties to an oral contract who disagree about its terms, the difference in evidence is usually equally stark.   Often the judge will accept one of their versions of events completely and reject the other.  The oral evidence of the preferred witness may be repeated verbatim in the judgment, treated as though it is as accurate as CCTV footage or a secret recording of the event.   Ask yourself this question: on an ordinary day when nothing particularly good or bad has happened to make it remarkable, what do you remember of the details of the many small incidents that occurred?  What do you honestly remember of what you saw as you walked down the high street, who served you in the supermarket, whether anyone was mopping the floor in the veg aisle, where precisely you crossed the road, what was said by you or the salesman when you discussed your new kitchen, which gear you were in as you drove towards a particular set of traffic lights, or precisely what the doctor told you or you said to him during a GP visit that seemed routine at the time.  The honest answer is almost always somewhere between "nothing" and "not much".  We remember the general gist and some of the main points of any day or particular conversation, but often little of the detail.    The adversarial system is such that witnesses are encouraged to put forward a positive recollection about all the surrounding facts of the day in question and, if they are honest and say that they don't remember everything clearly, they are at risk of being found unreliable.  It is not good enough for a driver to say that if something untoward had occurred before a child ran out into her path she would have noticed it because she was paying attention.  It is not good enough for a doctor to say that of course the advice was given because it is what she always says when dealing with that particular problem.  Unless the witness professes to have an actual recollection of what they in fact saw or said, they are at risk of being found to be "an unreliable historian".  "Not remembering" whether any life guards were present around the swimming pool gradually becomes a positive recollection that no life guards were there at the time.  The favourite refrain of many a judge in road traffic cases is "well she was there to be seen: if you were paying attention you would have seen her".  Maybe, maybe not.  The brain might well process a child on the pavement, but unless she was doing something odd, why would that have stuck in the memory?  As I drive along my road I might register vaguely that there are people about on the pavement.  But unless they are doing something unusual, my attention will note nothing more than that.  Are not these witnesses in fact the truthful and reliable ones?     Take, for example, a case in which a claimant professes to have a clear recollection about whether any cleaning crews were present in a huge supermarket superstore.  Of course the clear recollection is that not a single cleaner was there to be seen.  Really?  Who can honestly say that they notice the workers, officials and cleaners present in any shop, transport hub or leisure premises when they are going about their business and focussing on their day.  Uniforms blend into the background.  But this evidence is often accepted as accurate.  I do not place the blame on the witness who clearly believe their recollection iss true.  My concern is about the judges who accept it as so.      In a different but related context the New Jersey Supreme Court in the US has recently raised concerns about the reliability of eye witness identifications and handed down new guidelines for testing them.  It is notable that the Court places at the centre of its analysis scientific research into the reliability of eye witness evidence.  In a unanimous opinion, the court said (http://www.judiciary.state.nj.us/opinions/supreme/A808StatevLarryHenderson.pdf): "We find that the scientific evidence considered at the remand hearing is reliable.  That evidence offers convincing proof that the current test for evaluating the trustworthiness of eyewitness identifications should be revised. Study after study revealed a troubling lack of reliability in eyewitness identifications. From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country. "We are convinced from the scientific evidence in the record that memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications. Those factors include system variables like lineup procedures, which are within the control of the criminal justice system, and estimator variables like lighting conditions or the presence of a weapon, over which the legal system has no control."   If scientific studies show that basic eye witness recognition of the perpetrator of a crime has a high incidence of unreliability it is difficult to see why recollection of other small facts and details in less dramatic cases should be any better.  One cannot help but think that justice would be well served if more judges were prepared to recognise the reality of the vagaries of memory, rather than simply picking the witness they like best and accepting absolutely all they say as being completely accurate.  That said, as much of my job involves catching witnesses out on small slips so that I can call the totality of their evidence unreliable, I'm at risk of putting myself out of a job...