How not to give witness evidence - Lessons learned from Ahuja v Victorygame

Ahuja Investments Ltd v Victorygame Ltd & Anor (CONTRACT - Purchase of commercial investment property) [2021] EWHC 2382 (Ch) was a trying case - the key witnesses’ evidence was unreliable, other key witnesses were absent, other witnesses gave "pro-forma" witness statements prepared by lawyers - with the judge having to decide which side was lying; but for litigating parties it is a masterclass in how not to give witness evidence.

Unsatisfactory witnesses – the witnesses were there but were not helpful

The key witnesses who gave evidence in this case were Mr Singh for Ahuja and Mr and Mrs Pandher for Victorygame. Ahuja had purchased a retail development from Victorygame but claimed fraudulent misrepresentation and breach of contract on the basis that Victorygame told them that all the leases were for 15 years when in fact they were shorter. The judge said that “this is a case in which, unfortunately, one side or the other is telling lies” and that “having heard all the witnesses give their evidence, the court will have to make up its own mind about who is telling the truth.” Unfortunately, the judge found all three witnesses, from both sides, to have been unsatisfactory. 

The reasons given by the judge as to why Mr Singh was an unsatisfactory witness were as follows:  

• Giving evidence in foreign language – it is proper to give evidence in your own language through an interpreter if you are not sufficiently fluent to give evidence in English. However, if you are sufficiently fluent then it could appear a strategy to give you more time to respond, and a way of distancing yourself from problematic answers. This was the conclusion of the judge of Mr Singh, who used an interpreter during cross-examination even though he had a relatively good command of written and spoken English, and did not use the interpreter when he was re-examined by his own barrister.
• Giving speeches rather than straight answers – this can appear as evasive. The judge held that Mr Singh refused to give straight answers to simple questions, preferring to dissemble and give long speeches.
• “Convenient” memory – witnesses will of course not recall everything that happened, but if you only remember everything that helps your case and nothing that might damage it then this does raise questions and will be noticed. In this case, the judge held that Mr Singh appeared to have a consistent and convenient loss of memory when it came to matters that were potentially damaging to his case but an unswerving firmness in recollection of other events.
• Obviously wrong – Mr Singh was willing to give evidence during cross-examination that was obviously false and contrary to contemporaneous documentation. Documents are key when it comes to evidence as memories can be fallible.
• Overblown claims – Mr Singh was liberal in making unsubstantiated allegations of or innuendos suggesting wide-spread dishonesty and impropriety going far beyond the pleaded allegations and implicating others in the fraud against him.
• Embellishment – embellishing a story as time goes on can suggest the recollection is not accurate. The judge held that Mr Singh had a tendency to develop and embellish his evidence with the passage of time, pointing to an event that was covered in two separate witness statements by him.  
• Inherent improbability – judges will apply common sense when evaluating evidence. In this case, Mr Singh was claiming that he relied on fraudulent representations made to him about the lengths of leases when buying a retail development. The judge said however that if such a crucial representation had been made, it would have been a shocking discovery. There was nothing in Mr Singh’s witness statement about how he discovered the representations were false and cross-examination did not elucidate this any further either.

The judge found Mr and Mrs Pandher, witnesses for the Defendant, to be unreliable too for similar reasons.

Absent witnesses – the witnesses were not there, but would have been helpful

The absence of key witnesses clearly frustrated the judge, who said it was “…not so much a case of “Hamlet without the Prince” as one of Hamlet without any of Polonius, Gertrude or Laertes (or Rosencrantz and Guildenstern without Hamlet, Claudius or the Player)”.

The court is entitled to draw adverse inferences from the absence of witnesses, although it has observed that this principle is “likely to genuinely arise in relatively small numbers of cases, and even within those cases the number of times when it will be appropriate to exercise the discretion is likely to be still smaller” (Magdeev v Tsvetkov [2020] EWHC 887 [para 150]).

The judge said that before the discretion to draw an adverse inference can arise at all, the party inviting the court to exercise that discretion must first:

• Establish that the other side might have called a particular person as a witness who had material evidence to give on that issue
• Identify the inference that the court should draw
• Explain why that inference is justified on the basis of other evidence before the court

The Supreme Court has recently explained in Royal Mail Group Ltd v Efobi [2021] UKSC 33, however, that this is a matter of ordinary rationality, and that tribunals should be free to draw, or to decline to draw, inferences from the facts of the case using their common sense without the need to consult law books when doing so.

Here, the judge held that it was “one of those perhaps rare cases” where it was appropriate to draw inferences in relation to Ahuja’s failure to call their lawyer Mr Jandhu. Mr Jandhu had written to Ahuja about the events in dispute and although that letter was privileged, Ahuja could have waived that privilege. The inescapable inference was that Mr Jandhu had provided Ahuja with information material to the proceedings that Ahuja did not want to disclose. The judge was prepared to draw the adverse inference that Mr Singh had instructed Mr Jandhu not to consider the terms of the leases at the time of the acquisition meaning that Ahuja had not relied on the alleged misrepresentation about the lease lengths at all.

"Pro-forma" witness statements prepared by lawyers

A number of tenants gave what were described as "pro-forma" witness statements, implying they were identical in form and likely drafted by lawyers for them. The judge accepted that no real weight could be placed on the evidence of these witnesses, as the court could not be satisfied that their witness statements were prepared in their own words or that they had even understood the words printed on the page. Their evidence was rather "a collective effort".

The court rules require a trial witness statement to be in the witness’s own words and are increasingly criticising over-lawyered witness statements. New court rules introduced in the Business and Property Courts (Practice Direction 57AC) were designed to deal with this amongst other issues and to ensure that witness statements contain the testimony of a witness’s own recollection in their own words. Trial statements to which this Practice Direction applies must contain a confirmation of compliance to be signed by the witness including that the statement sets out only their personal knowledge and recollection, in their own words. It must also contain a certificate of compliance by the solicitor who prepared the statement that it complies with the new Practice Direction.

In England and Wales lawyers cannot coach witnesses on their witness statements and what is likely to come up in cross examination but we can prepare witnesses for what the experience will be like. What lawyers cannot necessarily do is predict how a witness will perform in the witness box at trial, even though as matters currently stand, this can be key to the outcome of a case.