When opinion becomes fact

Factual witness evidence can be the foundation of a successful defence. However, obtaining a credible and compelling statement from the key witnesses can be challenging.

The Claimant will have undergone the procedure or sat through the consultation or assessment which is at the heart of the case only once. By contrast, the witnesses for the Defence may have repeated the process in question many times in the intervening period and have no recollection of the particular procedure or consultation which is the focus of the claim.  Some assistance may come from reviewing the contemporaneous notes, but the notes may be written in short hand, particularly if the procedure in question is routine.  

The witness may describe their usual practice as a means of bolstering their evidence. This, of course, is reasonable. However, as a recent case illustrates (Ebanks-Blake v Calder [2025] EWHC 3327 (KB) (18 December 2025) adopting the evidence of the parties’ expert and passing it off as your own recollection, is not. 

The case

The claimant was a professional footballer with Wolverhampton Wanderers who suffered a fracture of his lower left fibula during a match. The Defendant reduced and fixed the fracture to the fibula in addition to which he performed an ankle arthroscopy. The Claimant’s case was that the latter procedure was not indicated and caused damage. The key issue to be addressed by the Defendant in his statement therefore was the rationale behind his decision making at the time. Put simply, why had he thought that the arthroscopy was reasonably required? To supplement his own recollection, the Defendant incorporated wholesale passages from the report of his expert into his statement, without attribution.

Unsurprisingly, this unusual stratagem did not escape the scrutiny of the trial judge. Noting that the Defendant’s evidence had evolved throughout the lifetime of the case, the Judge observed that “the fact that sections of the defendant's witness statement had been cut and pasted from Professor Ribbans' report is a strong pointer in the direction of the defendant's thinking having been influenced by aspects of the expert opinion of Professor Ribbans. The defendant accepted that those sections were almost word for word identical and their inclusion could not have been accidental or coincidental".
 
In other words, rather than the expert basing his opinion as to whether the care was reasonable upon the Defendant’s factual account of his reasoning at the time, the Defendant based his factual account upon the opinion of his expert, who was a known enthusiast for arthroscopies. In short “the defendant's account of his reasoning and recollection has been, no doubt unwittingly, influenced by expert opinion”. Given this, the Judge concluded that “I can place little or no reliance upon the defendant's witness statement or his evidence at trial".

The defence failed. 

Practice points 

This is the latest of a series of cases in which factual statements have been the subject of unflattering judicial comment, and where the hand of the lawyer has been felt, rather than the voice of the witness heard. Ultimately, lawyers do need to step back and let the witnesses speak for themselves.