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'Unconvincing and unreliable' witnesses vs dishonest ones: relevant factors and lessons to learn for litigation: Brint v Barking, Havering and Redbridge University Hospitals NHS Trust [2021] EWHC 290 (QB) - Paul Erdunast, Temple Garden Chambers

08/03/21. There are cases where an unconvincing and unreliable witness is not dishonest. That much is not news; it is obvious. The point of this piece is to give tips to Defendant litigators who want to prove fundamental dishonesty in a case where the Claimant’s evidence has serious inconsistencies. That said, this piece has use for Claimant representatives as well, as it gives an insight into how the judge might think, and how the other side might act, where the client’s evidence is not perfect.

The case was one of alleged clinical negligence, although the exact facts of the case do not matter for these purposes.

The relevant factors for the court

The Court found nine factors on which to base its conclusion that the Claimant was not fundamentally dishonest, even though her evidence was seriously unreliable. The relevant factors out of these are as follows:

1. The allegation of fundamental dishonesty only came the day before trial. There was no reason given why it came so late given that the relevant evidence was there all along;

2. Only one out of the many experts in the case raised dishonesty in presentation, and none of the Claimant’s treating clinicians did this;

3. The judge’s impression of the witness was that she was not motivated by financial gain, and this was...

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