Sometimes you find identical passages in two (or more) of the respondent’s witness statements. It’s obvious what has happened: whoever has drafted the witness statements has either cut and pasted passages, or – more likely – used one statement, edited and partly rewritten, as the basis for another.
Is this allowed? Does it mean the witnesses have colluded? Does it mean some or all of them must be lying?
Yes, sort of, and no.
It is perfectly permissible for all the statements to be written by one person. If solicitors are acting, drafting statements will be a normal part of their job. The tribunal won’t be surprised or shocked by evidence that the witnesses didn’t write their own statements. Drafting the statement and providing the information that goes into it are two different jobs, though: the witnesses probably won’t have done the former, but they certainly ought to have done the latter. (See further Witness statements have to be true.)
The respondents’ witnesses will almost certainly have discussed their evidence with their representative and each other, and it is possible that they have reached a consensus on things they initially disagreed about. That’s ok: no-one expects witnesses on either side to be kept isolated from each other. So in this limited sense, yes: certainly the witnesses on the other side will have ‘colluded.’
It doesn’t mean the witnesses have to be lying. Collusion in the bad sense – that is, all getting together and agreeing to tell the same lie – is not allowed, of course. But the appearance of identical passages in different statements is much more likely just to mean that the solicitor has taken a bit of a short-cut when setting out the evidence of the different witnesses. The witnesses all agree broadly what happened anyway, and the solicitor hasn’t bothered to draft statements that reflect the subtle differences between them. As long as they have all read their statements and satisfied themselves that they are true, that’s legitimate.
Where does it get you?
What this means is that simply pointing out that the exact same passage recurs in two or more of the respondent’s statement won’t score you a direct hit. But it is certainly worth some thought about whether it shows weaknesses in the respondent’s preparation.
That means thinking about the content of the identical passages. If two witnesses start their statements by describing in the same terms what sort of business the respondent is, or give identical accounts of how it operates its flexitime arrangements, for example, it will be very difficult to get the tribunal to see that as sinister (though they may be a bit irritated at being told the same thing twice). But if two witnesses give identical accounts of an incident that they both witnessed, it’s more suspect: two witnesses rarely notice and remember exactly the same events, and this does tend to suggest – at best – that they haven’t properly taken ownership of their statements. Just pointing out the similarity still won’t get you very far in itself – but it might get you somewhere in conjunction with other material. Your cross examination might go something like this:
You checked your statement carefully before you signed it and swore to it?
So you’re sure that everything you say in it is true?
So when you say at paragraph 32 “Waa waa waa…” – you’re sure of this?
You’d remember that because …. ?
Would you turn to page 351 in the bundle. It follows that “Waa waa waa… ” can’t be right, doesn’t it?
Would you turn to Ms Cox’s statement, paragraph 24 – she says exactly the same thing doesn’t she?
And have a look at Mr Ashmead’s paragraph 39 – he says it too?
By this time both the witness and the respondent’s solicitors are looking a bit silly. How silly depends on how important the evidence in question is, and how completely the document at page 351 shows it to be wrong. But certainly sillier than if only one witness had made this mistake.