Testing, Testing, 1, 2, 3

Sometimes, disputes of fact are just that. And they cannot be reconciled or agreed between parties in dispute.

We all act on our clients’ instructions and must obviously do so.

But must we do so at the expense of our critical analysis, and without serious challenge or question?

My own practice is to challenge all evidence, witnesses and experts involved. So far, I suspect, so normal. But I go further. And whilst I always try to do so respectfully and in a professional manner, I do not give my clients a ‘free pass’ as many of them will attest.

I will challenge and cross-check all of their evidence and, where appropriate, their instructions. Ultimately, I believe that most, if not all of those who instruct me, are grateful for that challenge.

We know that memory fades and can be false. We know that we, as people, create our own narratives. And though rarer, we know that some are willing to be, shall we say, economical with the truth.

In our world, and in my personal experience, the latter will increasingly lead to findings of Fundamental Dishonesty and/or fraud being pursued and consideration given to committal proceedings thereafter.

But leaving outright dishonesty aside and the above consequences which, sadly, I have experience of, what about cases where the witness evidence/instructions given are, though genuinely believed true, simply fantastical when considered against all contemporaneous evidence and basic standard practice?

I ask that question in the context of a trial that I was involved in at the very end of 2021. That trial collapsed on day 2 where the evidence given by the Claimant in the witness box against my client was in direct opposition to that contained and proffered within his witness statement and as pleaded within the Particulars of Claim. In the box, he conceded that the Defence was correct on both of the two determinative factual issues.

I fully accept that the above can happen, without warning. However, in this case, the allegations advanced by the Claimant against a conscientious and caring consultant urologist were, in my view, untenable when considered against the contemporaneous medical records and clinic letters.

I fully appreciate that many will take my opinion as the Defendant’s representative with a pinch of salt and view it with some scepticism.

But that was not just my view. Following the necessary discontinuance mid-trial, the judge felt compelled to express, an albeit informal view that:

“I read into the papers last week, and I did wonder why the case was going ahead. In light of the contemporary documents, absent a catastrophe, it was going to be very difficult for the claimant to make its case as to what happened in those two meetings.”

The Judge went on to say:

“I think some form of acknowledgement of the anguish caused to the Defendant by having to face proceedings which were abandoned halfway through trial would be appropriate.”

My point is that I believe that our clients often benefit from our challenge to their evidence and instructions.

It is accepted that clinical negligence claims are sometimes not about money. But it is noteworthy that in this matter, quantum was agreed at the last minute at less than £30,000 where the Schedule of Loss had been in excess of £170,000.

Nonetheless, and whatever the intended aim of the proceedings, the Claim had been pursued for many years and costs in the hundreds of thousands of pounds incurred. Indeed, the trial had been listed for 5 days in the High Court.

Clients are well served with uncomfortable advice being given early. The problem for a Defendant is that if liability is to be denied, as is often appropriate, they become unwilling passengers within proceedings. But in such cases, we all become guilty by association of perpetuating the oft trotted out view that:

“Only the lawyers win.”

We can and must do better to challenge that misnomer and challenging our clients may be one way to do so. I believe it is our duty to do so and, in addition, doing so may well better serve our collective professional reputations.

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