News

Fri, 4 Jun 2010

Litigation Risk: Witness Credibility and the Wide Discretion of the Court

The recent court of appeal decision in Bell v Havering London Borough Council highlights the wide discretion of the court and how a case can easily turn on the oral evidence of witnesses fuelling the fire of uncertainty in the litigation process.

The claimant brought a claim for personal injury against the defendant local authority after allegedly tripping on a brick-edged planter outside her home.

The local authority initially admitted liability but later withdrew their admission on the basis of inconsistencies in the claimant’s medical records and her pleaded account of the accident. The local authority believed that the claim was fabricated.

At trial, the local authority questioned the claimant’s credibility in drawing the judge’s attention to the inconsistencies between the account of how the accident had happened in the letter of claim, particulars of claim and the claimant’s oral testimony as well as the inconsistencies in the medical records.

The trial judge agreed that the claimant’s letter of claim and particulars were ambiguous but despite the inconsistencies in the medical records, in finding for the claimant, accepted the claimant’s account of the accident given in oral testimony.

Unsurprisingly, the local authority appealed the decision contending that the judge had erred in his approach to credibility in failing to take properly in to account the numerous inconsistencies which, on the whole, would have led to the conclusion that the claimant had not given a truthful account of the accident.

The court of appeal dismissed the appeal reasoning that the judge had had the benefit of hearing the claimant’s evidence particularly under cross-examination on the inconsistencies and was entitled to reach the decision he did on the claimant’s credibility.

The local authority must have been confident of successfully defending the claim and the inconsistencies in the claimant’s evidence would have played a major role in the decision to take this case to trial. However, notwithstanding the weight of the evidence, it was impossible for the local authority to foresee that the trial judge would be persuaded by the claimant’s oral evidence enough to outweigh the documented inconsistencies. The local authority were not convinced hence the appeal but the judge has a very wide discretion which, generally, the appeal courts are very reluctant to interfere with.

Had this case taken place before a different judge or on another day the decision could have been very different.