Thinking fast thinking slow

For many years I have had an interest in behavioural psychology. The field is closely related to a quality that all lawyers should possess namely: empathy. That is the ability to share and understand the feelings of another.

I would emphasise the word “feelings”: because although we may kid ourselves that we creatures of logic, moving smoothly from rational decision to rational decision, much decision making is unconscious, or instinctive and not based on objective evaluation of the circumstances we find ourselves in.

That in turn means that in litigation you cannot assume that either your counterpart, is making rational decisions. It also raises the larger question, which is whether our current legal system predicated on alleged rational decision making is no such thing: and there are fascinating studies that have taken place, which reveal that in for example, when sentencing in the criminal courts, the severity of the sentence that you might get, can be affected by the time of day when sentence is handed down, and whether the judge is hungry or has been fed. See : https://www.theguardian.com/law/2011/apr/11/judges-lenient-break.

If such considerations apply to your counterpart in litigation or the court, how much more do they apply to clients: and it follows that when taking instructions from a client or litigating their case, it is extremely dangerous to assume that they will behave rationally, by eg always reading letters that you send them, or that they will assiduously check the truth of what they tell you, against available contemporaneous documents or more prosaically, that they will actually correct witness statements, prior to reading them. Yet they are litigating in a court system designed for “econs” and predicated that decisions made by courts are rational and based upon the evidence.

So how much slack in the court process should be given for human frailties of the type that I have discussed? Particularly in relation to shortcomings or inaccuracies in the drafting of Claims Notification Forms or similar documents which may arise through carelessness or for more sinister reasons?

In the case of Richards and McGrann v Morris [2018] EWHC 1289 (QB) the trial judge thought quite a lot. Conversely the appeal judge felt they should be taken seriously:

9.  For the above reasons, I cannot associate myself with the comment made by HHJ Main QC at paragraph 42 of his judgment where, referring to CNFs, he said:

“I do not find them reliable documents. They are done shortly. They are all very summarised. They are simplistic documents which do not permit there to be details of clinical presentation that can be relied upon by a trial judge and I just ignore them.”

On the contrary, in my view they are important documents: they provide the basis for possible proceedings for contempt of court, as seen, and they provide valuable information at an early stage in the litigation process. Endorsed with a statement of truth, as they are, CNFs should be reliable documents and should be taken seriously.

The appeal judge also noted:
65.  Before considering the particular issues in this case, it is also pertinent to recognise the problem that fraudulent or exaggerated whiplash claims have presented for the insurance industry and the courts. This was recognised in March 2018 when the Ministry of Justice published a Civil Liability Bill which aims to tackle insurance fraud in the UK through tougher measures on fraudulent whiplash claims, proposing new, fixed caps on claims and banning the practise of seeking or offering to settle whiplash claims without medical evidence. The problem of fraudulent and exaggerated whiplash claims is well recognised and should, in my judgment, cause judges in the County Court to approach such claims with a degree of caution, if not suspicion. Of course, where a vehicle is shunted from the rear at a sufficient speed to cause the heads of those in the motorcar to move forwards and backwards in such a way as to be liable to cause “whiplash” injury, then genuine claimants should recover for genuine injuries sustained. The court would normally expect such claimants to have sought medical assistance from their GP or by attending A & E, to have returned in the event of non-recovery, to have sought appropriate treatment in the form of physiotherapy (without the prompting or intervention of solicitors) and to have given relatively consistent accounts of their injuries, the progression of symptoms and the timescale of recovery when questioned about it for the purposes of litigation, whether to their own solicitors or to an examining medical expert or for the purposes of witness statements. Of course, I recognise that claimants will sometimes make errors or forget relevant matters and that 100% consistency and recall cannot reasonably be expected. However, the courts are entitled to expect a measure of consistency and certainly, in any case where a claimant can be demonstrated to have been untruthful or where a claimant’s account has been so hopelessly inconsistent or contradictory or demonstrably untrue that their evidence cannot be promoted as having been reliable, the court should be reluctant to accept that the claim is genuine or, at least, deserving of an award of damages.
66.  In the present case, in my judgment, HHJ Main QC adopted a much too benevolent approach to evidence from Claimants which could be demonstrated to be inconsistent, unreliable and, on occasions, downright untruthful. Indeed, the Judge himself recognised the problems with which he was faced by the evidence of these Claimants. Thus, in the case of Mrs Richards, he said in terms that she was “hopelessly inconsistent” and I refer again to paragraph 17 of his judgment cited earlier in this judgment at paragraph 37. Despite these remarks and these findings, the Learned Judge did not, in my view, reflect them in his overall decision and approach to these claims, as he should have done. In my judgment there is force in the submission which Mr Wood makes based upon the decision of the Court of Appeal in Yaqoob v Royal Insurance [2006] EWCA Civ 887 : see paragraph 43 above in this judgment. I refer again to paragraph 25 of the judgment of Chadwick LJ. There, the Judge had identified a conflict of evidence in circumstances where he was bound to say why, if he did not believe the claimant on one matter, he was able to accept the evidence of the claimant that he had nothing to do with the fire. So too, here, the Judge, having found that Mrs Richards’ evidence was “hopelessly inconsistent”, was duty bound to explain why he could nevertheless accept that evidence in relation to both the fact of injury and also the length of the time that the injury was suffered. The Learned Judge failed to give effect to the adverb he himself used, namely “hopelessly”. How, if the evidence was hopelessly inconsistent, was the Judge nevertheless able to rely on it and find that the injury had been suffered for a period of eight months? Equally, there were similar problems with the evidence of the second Claimant.
The decision of the judge was overturned on appeal: the claims failed for want of proof, but no finding of fundamental dishonesty was made.
So which of these two approaches to evidential shortcomings is the correct one? A degree of benevolence when addressing evidential issues or a requirement that claims notification forms and other documents are treated seriously, inconsistencies noted and addressed, witnesses who want to prove their claims giving rational evidence and explanations?
The short point is that the High Court judge’s approach is undoubtedly the correct one in law, but the more substantial point is that it must be the correct one on a practical and philosophical basis: because otherwise the legal system is casting adrift any pretence at being grounded in rational evidence based decision making.
But there is an issue here. For every case of genuine dishonesty that I have seen at trial, there are ten where the true issue is sloppy paperwork and mistakes, made by the client and facilitated by solicitors who assume that clients read what they send them.
The issue for solicitors is to ensure their clients cases are properly scrutinised and to take account of human frailties (such as idleness) at that stage. Therefore if your clients don’t read letters, then telephone them. If they are unlikely to read their statements before signing them, then read them to them, checking each paragraph so that the evidence is accurate.
If a medical report is obtained, then make sure that the client’s medical records have been obtained in advance, of the client approving it, so the client’s informed instructions can be taken, and work on the basis that the client’s carelessness, lack of application to paperwork and poor memory is addressed through client care and is not liable to be wrongly interpreted at any trial as evidence of dishonesty.

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