Consistency is King

HHJ Picton, sitting as a Deputy Judge of the High Court

Unusually, this article concentrates on only 9 paragraphs out of a 132 paragraph Judgment in a liability disputed fatal RTA case (paras 99 – 107).

However, it deals with an important point of general application – how a court may consider a witness’s credibility. Clearly, this can be a key point (if not ‘the’ key point) in a case. I am frequently asked to advise on how a court may consider witness evidence which may, or may not, be vital to the outcome of a case.

In Palmer the Judge addressed such an issue at the start of the substance of his Judgment, noting this to be an ‘overarching issue’ of the case.

In these 9 paragraphs, the Judge provided a detailed analysis of the Defendant’s (Mr. Timms) credibility as a witness, offering valuable insights into how court may evaluate evidence.

The Judge found that Mr Timms lacked credibility for a ‘variety of reasons and in some significant regards’.

Evolving Narratives and the Reliability of Recollection

A major concern in the Judge’s assessment was the evolution of Mr. Timms’ account over time. The Judgment makes it clear that the Defendant’s narrative changed significantly from his initial statements to the paramedic and police officer at the scene of the accident, to the version he ultimately presented in court.

While the Judge acknowledged that shock and human frailty can lead to inconsistencies, the court found that the variations in Mr. Timms’ accounts were too substantial to be explained solely by these factors.

As an aside, Mr. Timms’ decision to respond ‘no comment’ during his police interview was noted but not held against the Claimant. The court rightly acknowledged that he was entitled to exercise his right to silence, and that criminal charges were being considered at the time. The Claimant was subsequently prosecuted (but seemingly acquitted) for death by careless driving.

A further factor that led the court to question Mr. Timms’ credibility was the inconsistency between his eventual settled account and the instructions provided to the defence accident reconstruction expert. Similarly, the defence statement for the criminal trial did not initially align with the case he presented at this trial. The court took the view that his narrative was evolving rather than being based on a clear and consistent recollection of events.

The Judgment also reflects on the well-documented psychological tendency of individuals to reinterpret events, particularly when those events involve trauma or potential blame. The Judge observed that Mr. Timms appeared to be constructing a narrative that he could live with, potentially as a psychological defence mechanism against feelings of guilt.

It is well-established that witness evidence which a court rejects is not always intentionally deceptive. Memory is inherently fallible, and self-preservation instincts can influence how individuals recall events.

Finally, the Judge’s assessment of Mr. Timms’ demeanour played a role in the overall finding on his evidence. Described as “somewhat irritably defensive” Mr. Timms’ eagerness to defend his position appeared to the court as an indication of guilt or a recognition of responsibility. His use of what was described as dramatic terminology, such as describing the Claimant’s actions as “suicidal,” further contributed to the impression that he was attempting to construct a defensive narrative rather than recounting events impartially.

Conclusion and Key Takeaways

This case serves as a useful reminder that simply because someone gives evidence in a witness statement (a) it may not be true (b) it may not be because someone is consciously misleading:

‘The capacity for people to persuade themselves that they remember things differently from how they actually were is again a matter of common experience.’ (paragraph 105).

These paragraphs set out a number of factors which a court may consider when choosing to accept or reject a witness’s evidence. These include:

That, unsurprisingly, inconsistent and ‘evolving’ evidence is likely to be rejected.

Evidence given shortly after the events in question is likely to be preferred to evidence given some time afterwards (which is potentially open to subsequent re-writing by a witness, whether deliberately or not).

That the court may consider a witness’s own position in the case when considering evidence. In this case the court found that the Defendant had sought to come to a set of facts on which he could ‘live with’, seeking to avoid criticism for events leading to the Claimant’s death.

Presenting evidence which is inconsistent with instructions provided to that party’s own expert is likely to be rejected.

The Judgment in this case provides a practical example of how courts may assess witness credibility. Factors such as evolving narratives, inconsistencies with expert evidence, psychological influences on memory, and demeanour all played a role in the Judge’s conclusion that Mr. Timms was not a credible witness.

The Judgment can be found here.