Professionals, allegations of fraud, and witness credibility

The headline outcome from Mansion Estates Ltd v Hayre & Co (A Firm) (2016) is HHJ Saffmann considering that it is no less “inherently improbable” that a solicitor would set out to mislead the court than any other person, and going on to find that the Defendant’s documents were “materially compromised”. This was not a case where the judge could find one party had “misremembered” or made an innocent error: he had to decide which witness to prefer, with the corollary that, essentially, the other witness was dishonest.

The judgment sets out a very helpful summary of the ways in which a judge may decide who to believe, and the factors that are likely to be important:-

a) Inherent probability, while extremely important, should not be considered in a vacuum: it would be quite wrong to assume in all cases that serious conduct is unlikely to have occurred Re B (Children) [2008] UKHL 35.

b) The judge referred to the tests summarised, extra-judicially, by Lord Bingham, namely:-

1. The consistency of the witness’s evidence with what is agreed or clearly shown by other evidence, to have occurred;

2. The internal consistency of the witness’s evidence;

3. Consistency with what the witness has said or deposed on other occasions;

4. The credit of the witness in relation to matters not germane to the litigation;

5. The demeanour of the witness.

 c) The considerations noted by Gillen J in factors Thornton v NIHE [2010] NIQB 4:

1. The inherent probability or improbability of representations of fact;

2. The presence of independent evidence tending to corroborate or undermine any given statement of fact;

3. The presence of contemporaneous records;

4. The demeanour of witnesses;

5. The frailty of the population at large in accurately recollecting and describing events in the distant past;

6. Does the witness take refuge in wild speculation or uncorroborated allegations of fabrication?

7. Does the witness have a motive for misleading the court?

 d) Following Mumtaz Properties v Ahmed [2011] EWCA 610, over and above “demeanour” the judge should consider what other independent evidence was available to support the witness. Contemporaneous written documentation was of the greatest importance in assessing credibility and could be significant not only where it was present and oral evidence could be checked against it, but also where it might be conspicuous by its absence and inferences drawn.