Another first instance decision in which the judge (Mr Justice Turner) had to make decisions about the credibility of witnesses. The paragraphs below have been extracted from the judgement and edited for ease of reading.
“It must follow that I reject the claimant’s evidence on this point. His counsel seeks to persuade me that he was an honest witness doing his best to assist the court. The defendant, in contrast, invites me to treat him as one who was trying his best only to do whatever he could to further his case. I find the truth to lie somewhere in between these two extremes but tending, within that spectrum, more towards the defendant’s assessment. In short, I found that the claimant was generally discursive in his responses to questions in cross examination and all too ready to promote irrelevant detail above focussed clarity. In part, this may have been attributable to his natural style but not, in my view, entirely. His obfuscation, I find, was to an extent linked to an unwillingness to be pinned down to specific answers which he feared might have exposed him to unhelpfully stark inconsistencies in his evidence whether in the form of discrepancies between his oral evidence and the contemporaneous documentation or otherwise. He is clearly an intelligent, astute and articulate man from which I conclude that his overblown answers were, to a significant degree, tactical in intent. On many occasions, he took an egregiously long time to read often quite short passages from documents to which his attention had been drawn in cross-examination. Of course, some people read more quickly than others but I am satisfied from a combination of his demeanour and the inordinate length of the delays in so many of his responses that he was taking his time to engineer his replies to suit his case rather than to provide open and spontaneous assistance to the court.
I also found the claimant to be forceful and assertive in cross examination. He gave every appearance of being well accustomed to getting his own way. In this respect, his presentation in the witness box, although laboured, was entirely consistent with the generally emphatic tenor of his emails. I do not doubt that his dissatisfaction with Mr X is genuine but I am equally satisfied that, as the years have progressed, his perspective on the case has become inexorably channelled away from objective recollection towards a state of mind which more closely fits the template of his claim. Thus it was that the wish fulfilment of reconstruction repeatedly contaminated clear and accurate recollection.
Later exchanges of emails do not cause me to change my view that, generally, where the evidence of the claimant [and witnesses] is in conflict with that of Mr X, I prefer that of Mr X. In reaching this conclusion, I bear in mind that Mr X’s recollection has been shown to be inaccurate in respect of more than one issue. For example, he had reached the conclusion in the early stages of the litigation that there was no Colonial AD&D policy and that he had not received a copy of the Colonial LTD policy. I am satisfied that these were genuine failures of recollection brought about by the passage of time and not examples of evidential topiary seeking either unconsciously or otherwise to shape his memory to suit his case. His oral evidence at trial was given thoughtfully and with a credible fluency which stood in stark contrast to the effortful procrastinations of the claimant.
I found Mr Y, in general, to be an elusive and protean witness. His independent recollection was, understandably, considerably diminished by the passage of time, as he realistically admitted, with respect to a number of issues. Notwithstanding this, he repeatedly fell into the temptation of adding a gloss to the documentary evidence with reference to speculation as to what might have been said but not recorded. In one exchange during cross examination he was asked, in the absence of any independent recollection on his part, if he accepted that the best that could be done would be to follow what the documents revealed. He replied: “I would say that’s the best we can do. Unfortunately, it may not be the most accurate.” In my judgment, this response went beyond an expression of natural caution but amounted to a wistful recognition that he had, in supporting the claimant’s case, exposed himself too far beyond a position which could be defended on the strength of the contemporaneous documentation.”