On being a witness, not being perfect, but being believed.

One of the things that becomes apparent whenever you read any High Court judgment is the imporantance of the human aspect of the proceedings. Something that bothers me about the virtual (Zoom) process is we lose a lot of the human aspect of the way in which witnesses come across. There is something subtly different about personal presentation when you are in a witness box.

It also reinforces your respect for the Judges who hear these cases because it’s not all about legal argument, although that is certainly part of it. So much depends on a witnesses demeanour, the way in which they express themselves, the way they come across.

Take the recently reported Arron Banks v Carole Cadwalladr for example. The Judge, The Hon Mrs Justice Steyn DBE (to give her her full title) seems to do at least two things very well. As you might expect.

Not only does she grasp the detail of the documentary evidence and compare it to what each of the witnesses said, but she also takes on board the way in which both witnesses – and there were only two in this case – came across in the witness box. I don’t think you can underestimate this, and it’s not always as obvious as you might think.

Take this for example:

“For the most part, Mr Banks’s evidence came across as truthful.” So she says “it’s for the most part”.

Later she says this:

“But there were aspects of Mr Banks’s evidence that came across as evasive and lacking in candour”.

Her analysis of Ms Cadwalladr was similarly analytical.

“It was manifest that Ms Cadwalladr found the litigation process and being subjected to cross examination over the course of three days, very stressful indeed”.

It gets interesting here because the Judge comments that over the course of her evidence Ms Cadwalladr “became more evasive” as much it seems because she was tyring to work out the significance of the questons and where Mr Banks’s barrister was going with his questions. All very understandable in the circumstances. But that doesn’t mean the Judge didn’t believe her.

The Judge concluded “my assessment is that she gave truthful answers throughout her evidence” notwithstanding that some of her answers were at odds with the documentary evidence. Which if you think about it, is pretty obvious.

But it’s also a reminder that creating documentary evidence at the same time as something happens (what lawyers call “contemperaneously”) can be critical.

It is also helpful to imagine yourself giving evidence when something goes wrong. How would you calmly explain what you thought had been said or agreed? What document would you refer to? It’s impossible to remember events from last week let alone last year. Write it down. In a notebook. In an email. Create your own documentary evidence and that in itself will alleviate some of the stress. That note you made, that email you sent. That Whatsapp message. It doesn’t matter as long as there is something.

As to the decision, the Judge found that Mr Banks had proved the publication of an allegation in a TED Talk had caused him serious harm to his reputation at least until April 2020 but that Ms Cadwalladr had established a public interest defence. The publication of a tweet was found not to cause Mr Banks serious harm to his reputation. And Mr Banks’s claim for damages was dismissed.

One aspect of the case, and there are many very interesting angles, is that Ms Cadwalladr claimed it was a SLAPP (strategic lawsuit against public participation) something I have discussed. As to that, the Judge was very clear. “It is neither fair nor apt to describe this as a SLAPP suit”.

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Mark

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