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Fraud Litigation

Dealing with liars on all sides of a case

Posted by on 16 November 2018
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Giving evidence in Court remains a solemn event; lying in court is not therefore to be trivialised. It carries potentially serious consequences including conviction for perjury (though, as shown in the Andy Coulson prosecution, not all lies told in Court amount to perjury) or committal for contempt of court under CPR 32.14. In one particularly direct example of the consequences of lying in court, Karbhari v Ahmed [2013] EWHC 4042 (QB), the defendant’s late application to amend his case, admitting that the defence originally pleaded was deliberately false, led the Judge to refer the matter directly to the Metropolitan Police’s Economic Crime Unit.

Nonetheless, it is naïve to think that lies are not told in Court. Indeed, the number of cases where diametrically opposed but trenchantly pursued evidence is given leaves no other inference, even taking into account differences in recollection, than that at least one of the parties is lying.

There has been, perhaps in part in response to this trend, something of shift in judicial attitudes to witness evidence. Rather than looking primarily to witness evidence (in the form of witness statements and, increasingly, at least on central issues, examination in chief) in civil cases, Judges routinely now look to the primary documents as evidence of what has actually taken place. While the importance of contemporary documents is nothing new – see the dicta of Robert Goff LJ in The Ocean Frost – their role appears to have been elevated to the extent that, in at least some cases, the utility of witness evidence at all as a means of ascertaining the facts has been doubted; see the judgment of Leggatt J in Gestmin v Credit Suisse [2013] EWHC 3560 (Comm).

More commonly, however, Judges look for external verification of a party’s first-hand account, for example in the contemporary documents; all the more so where there is reason to believe the witness is lying. In Stein v Chodiev [2014] EWHC 1201 (Comm), in a case which turned largely on the parties’ disputed accounts of meetings and oral conversations, Burton J described this process as looking for a “a hook, upon which to peg a conclusion, or to give corroboration to one side or the other, which is not dependent upon the vagaries of recollection”. In subsequent related proceedings, in which the defendants sought to set aside Burton J’s judgment on the basis it was obtained by false evidence given by the claimant, the same Judge set out what he would have done had he taken the view that both sides’ evidence was dishonest; essentially, to rely even more heavily on the extrinsic evidence and inherent probabilities. In Chodiev v Stein [2015] EWHC 1428 (Comm) Burton J stated at [38]: “if I had been faced with a choice between two sets of oral evidence … by parties both of whom I had cause to conclude had lied to me, or to have doubts about their credibility, I would have all the more done exactly that which I did do, namely looked for reliable corroboration of the evidence for one side or another.”

As a last resort, in the event that the trial judge takes the view that neither side’s evidence is honest and there is no extrinsic factors on which the Judge can base his conclusion then it may be that the Judge can do no more than find that the claimant has failed to discharge the burden of proving the facts necessary to make out his claim and, as a result, the claim fails. Such an outcome would generally be viewed as unsatisfactory however.

Caley Wright
Maitland Chambers

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