Justice seeks the Truth
Lord Denning:
“It is very rare that application is made to this Court for a new trial on the ground that a witness has told a lie. The principles to be applied are the same as those always applied when fresh evidence is sought to be introduced. In order to justify the reception of fresh evidence or a new trial, three conditions mast be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence most be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.
We have to apply those principles to the case where a witness comes and says: “I told a lie but nevertheless I now want to tell the truth”. It seems to me that the fresh evidence of such a witness will not as a rule satisfy the third condition. A confessed liar cannot usually be accepted as being credible. To justify the reception of the fresh evidence, some good reason must be shown why a lie was told in the first instance: and good ground given for thinking the witness will toll the truth on the second occasion. If it was proved that the witness had been bribed or coerced into telling a lie at the trial, and is now anxious to tell the truth, that would, I think, be a ground for a new trial and it would not be necessary to resort to an action to set aside the judgment on the ground of fraud. Again, if it was proved that the witness made a mistake on a most important matter and wished to put it right, and the circumstances were so well explained that his fresh evidence was presumably to be believed, then again there would be ground for a new trial, see Richardson v. Fisher, reported in 1 Bingham at page 145. But this is not a case of bribery or coercion, nor of a mistake. It seems to me that Mrs Marshall is not a person who in the new situation is personally to be believed. She endeavoured to show that she was coerced by her husband, but on reading through the affidavits on both sides, it seems to me that the suggestion of coercion comes to nothing. She does not seem to have been in fear of her husband at all. I am afraid it is simply a case where a witness who has told a lie at the first hearing now wants to say something different. It would be contrary to all principle for that to be the ground for a new trial.”
Applications to dismiss for delay described by Irish Court of Appeal as among the most common applications now dealt with by the courts ref Beggan v Deegan & Ors [2024] IECA 4 and there is a palpable aura of weariness in the judgments delivered in this area no doubt reflective of the fact that judicial time expended on these delay/dismiss cases introduces even more delay into the system and perhaps it is some to introduce some statutory basis to flush these cases out of the Courts.
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“Every day that goes by makes memories more feeble.” as per Murphy J in O’Neill v Canada Life Assurance (Ireland) &anor [1999] IESC
“Credibility involves wider problems than mere “demeanour” which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. and lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.” Lord Pearce
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Irish High Court Justice Denis McDonald adopts a very forensic approach to this fundamental principle of law. Below are some extracts from his recent judgment spanning 278 pages Nolan & Ors v Dildar Ltd & Ors (Approved) [2024] IEHC 4 (10 January 2024) :
“203. Ms. Nolan was also asked about evidence that she had given to the Law Society Disciplinary Tribunal in March 2017. In the course of her evidence before that Tribunal, she was asked whether she knew anything about Richard Nolan moving money to Serene from MECD. Her response was “no”. It was put to her by counsel for the Kenny defendants that this answer was incorrect. Ms. Nolan’s responses to this line of questioning by counsel for the Kenny defendants are telling. She began by saying: “Well, I didn’t know that the money was in Serene. It was only when Richard asked me to help him in 2014 and ’15 that I knew that there was money belonging to the OPT in Serene”. It is possible that she did not have contemporaneous knowledge about the transfers to Serene when they were made in 2013. However, I find it difficult to accept that Ms. Nolan could have been unaware of the source of the money used to part fund the settlement in June 2013 of the Bank of Ireland proceedings in which she was named as a defendant. This is especially so in light of her statement in her earlier affidavit that the plaintiffs had been advised by Mr. Desmond to route money through Serene for that very purpose. Even if one could accept what Ms. Nolan says about her state of knowledge in 2013, her suggestion that she was still unaware of the facts in 2017 (when she gave evidence to the Law Society Tribunal) is simply incredible. As she acknowledged in her evidence, she was involved in 2014 and 2015 in the investigation of what went wrong. It is inconceivable that she would not have become aware of the transfers to Serene at that time. The family knew by then that, in contrast to the transfers from MECD to CVSSA, the funds transferred to Serene were unaffected. I cannot believe that this piece of vital information was not shared with all of the family at that time. Crucially, Ms. Nolan’s assistance to Richard Nolan in 2014 and 2015 predated her evidence to the Law Society Tribunal. Her involvement in that process strongly suggests that she was not forthcoming to the Law Society when she told them, under oath, that she did not know anything about her brother moving OPT moneys to Serene. When counsel for the Kenny defendants pointed this out to her, she responded: “From Serene to MECD? Well this is monies to Serene from MECD. I just knew there was money in Serene, but I didn’t know where it had come from”. When counsel pressed her further to confirm that she did know it had gone from OPT to MECD and then to Serene, she accepted that this was “always the way it was supposed to go” but, almost immediately afterwards, she sought to qualify that by saying that it was to go to MECD and then CVSSA and then Serene. But, having regard to her involvement in the investigation in 2014 and 2015, it is inconceivable that she did not know in 2017 that some OPT money had gone to Serene. Counsel put it to her that the honest answer to have given to the Law Society Tribunal would have been “yes”. In response, Ms. Nolan sought to revert to her position that “this says that the money came from MECD” and that she did not know the details and that she “just knew there was money in Serene”. But, given that she knew that there was money in Serene, it is not credible to think that she did not know it represented the proceeds of the transfers to MECD (at least two of which she had personally authorised). In my view, it is very clear that the answer given by her under oath to the Law Society Tribunal was incorrect and that she well knew at the time she gave that evidence that a significant element of the proceeds of the OPT transfers had been moved to Serene. ..
“286. In my ruling, I drew attention to the fact that the plaintiffs, notwithstanding their abandonment of a similar claim against Mr Desmond, have chosen to pursue a claim in fraud and deceit against Mr Millett which, on the scale of seriousness of claims that can be advanced in civil proceedings, is at the very apex of that scale. If successful, the claim is capable of exposing Mr Millett not only to a very serious monetary liability but also to the ruin of his career as a pension and financial adviser. The stakes in these proceedings are, accordingly, extraordinarily high“ ref Nolan & Ors v Dildar Ltd & Ors (Approved) [2024] IEHC 4 (10 January 2024)
” 403. In light of my consideration of the evidence, I will now proceed to make the necessary findings of fact. For the reasons discussed in paras. 226 to 238 above, I have found that some of the evidence put before the court by the plaintiffs is unreliable and untrue. That raises significant issues about the credibility of other aspects of the evidence of Mr. Richard Nolan and Ms. Patricia Nolan. Given that they were prepared to give untrue evidence to the court in respect of the matters discussed in paras. 226 to 238, how can I be satisfied, as a matter of probability, that the remainder of their evidence is truthful and reliable? For that reason, it will be necessary, when making findings of fact, to keep in mind the guidance given by Hardiman J. in Shelly-Morris v. Bus Átha Cliath (quoted in para. 237 above). …
415. It might be thought that there must have been some contract between the parties such that the court should strive to establish its terms. However, the guidance of Hardiman J. in Shelly-Morris is very relevant here. Where untruthful evidence has been given such that a party has failed to establish its case on the balance of probabilities, Hardiman J. cautioned that it is not appropriate for a court to “engage in speculation or benevolent guess work in an attempt to rescue the claim, or a particular aspect of it, from the unsatisfactory state in which the plaintiffs’ falsehoods have left it”. This is the consequence that flows from giving untrue evidence. The plaintiffs have only themselves to blame for failing to be honest and upfront with the court in all of the most material aspects of their evidence.
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Similarly Justice Denis McDonald in Arklow Shipping UnLtd Company & Ors v Drogheda Port company DAC (Approved) [2021] IEHC 601 (17 September 2021) did not accept key witness for Arklow Shipping (lost their case) Captain Traktatov wrote his own witness statement (despite his sworn evidence that he did) stating that “the issue of his (sic Captain Traktatov) credibility will need to be kept in mind more generally”
“194. In opening the case, counsel for the plaintiffs noted that there were a number of mistakes in Captain Traktatov’s witness statement that would have to corrected when the master came to give his evidence and he submitted that such corrections are not uncommon. I acknowledge that, in my experience, it is not unusual for a witness to have to correct errors in a witness statement. However, in this case, there was an unusually large number of errors that had to be corrected by Captain Traktatov and several of them related to significant pieces of information relevant to the safe navigation of the vessel including, for example, his description of the maximum sailing draught of the vessel and also, as described in para. 193 above, his description of the interrelationship between the fresh and salt water draughts of the vessel. It is true that some of the errors may have arisen due to the fact that English is not Captain Traktatov’s first language. It was clear from the way in which he gave his evidence that his knowledge of English is patchy. However, if it is difficult to see how that would explain the errors in para. 32 of his statement. In turn, this raises a further issue in relation to his credibility. In the course of his cross-examination, he maintained that he wrote the witness statement himself. I cannot accept that. The fluidity of its language together with the syntax and grammar used in the witness statement could not be reconciled with the way in which Captain Traktatov expressed himself when giving his oral testimony and the obvious difficulty he had, from time to time, both in understanding some of the questions and in articulating his answers.
195. All of these considerations raise a significant doubt as to Captain Traktatov’s evidence in relation to whether he carried out a calculation of the salt water draught. However, while the issue of his credibility will need to be kept in mind more generally, I am inclined to give Captain Traktatov the benefit of the doubt in relation to this particular issue. I do so in circumstances where a somewhat similar issue arises in relation to the way this question was addressed by the pilot, Captain Breach, whose evidence was tendered by the port company at the trial. In his statement made on 17th December, 2018, following the grounding, Captain Breach said nothing about carrying out any calculation of a draught for the vessel prior to departure. Nor did he mention it in his witness statement in these proceedings. The first time he mentioned it was in his direct evidence on Day 6 when he briefly mentioned that: “I did my calculations, I felt that it was okay to sail”. He expanded on this in the course of his cross-examination during which he observed that “the vessel on the quay was 6m. That’s 5.9 in salt water”. While this is one centimetre deeper than the calculation made by Captain Traktatov, both witnesses say they made a similar calculation and neither of them mentioned having done so until they were sitting in the witness box (albeit a virtual one on this occasion). In these circumstances, I believe there is some force in the submission made by counsel for the plaintiffs that the making of such calculations are probably so obvious and routine to experienced navigators that it might not occur to them that it is necessary to expressly confirm that they had undertaken such a basic and usually uncontroversial step. As previously mentioned, the formula used to make that calculation is a standard one and could not be said to be complicated. In these circumstances, I am prepared to accept that, before departure, both Captain Traktatov and Captain Breach carried out a calculation of the salt water of the vessel with the former arriving at a figure of 5.89 metres and the latter arriving at a figure of 5.9 metres.”
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Similarly Justice Denis McDonald in MV v MFV v Rochelaise De Peche S.A. (Approved) [2024] IEHC 182 (26 March 2024) found inconsistencies in the narrative of key (and only) witness for the Kirrixhi (held 85% liable for collision with Hua Shen Hai) Captain Malabe :
“178. The marked differences in behaviour of the trawler, as described in paras. 176 to 177 above, add considerable weight to the conclusion that it was not engaged in the same activity in the period before the collision as it was earlier in the evening when both sides agree that it was casting its nets and associated gear into the water in order to commence fishing operations. I am further reinforced in my view by the many inconsistencies that exist in the case made by the Kirrixki at different stages of the chronology. Thus, as noted in para. 68 above, when Mr. Niall O’Hara inspected the trawler on behalf of its insurers, on 14th October 2019 (within 3 days of the collision), he recorded that he was told by Captain Antelo Malabe that, at the time of the collision the trawler was “preparing to shoot nets”. A similar statement was contained in the report of Mr. Paul Rossiter (a claims investigator appointed by insurers) who inspected the vessel six days after the collision and who also spoke with the skipper. I appreciate that there may have been language difficulties and I am conscious that there was no professional interpreter present but it is still puzzling that, if it were the case that the process of shooting the nets had already commenced at the moment of the collision, two experienced professional people who spoke with the skipper on two separate occasions would both come away with the same understanding that the trawler was only preparing to shoot its nets.
179. The inconsistencies do not end there. In addition, there is the very significant inconsistency between the response to para. 5 (a) of a request for particulars served on behalf of the Hua Sheng Hai (where it was said that the skipper saw the ship “a few miles ahead”) and the witness statement of Captain Antelo Malabe (where he said in unqualified terms that he did not see the Hua Sheng Hai at any point) which, in turn, is inconsistent with his oral evidence (where he said that he had seen it at 7 miles and assumed that it would manoeuvre to avoid the trawler). It is also difficult to reconcile the evidence that he had seen the Hua Sheng Hai with the terms of the preliminary act which, as noted in para. 154 above, suggests that the ship was not seen until after the collision.
180. There is also the very obvious inconsistency between the response given on behalf of the Kirrixki to para. 5(j) of the request for particulars and the evidence given by Captain Antelo Malabe in relation to the manner in which the trawler was steered in the period between 23:44 and 23:50 on the night of the collision (i.e. the period during which the skipper claims he was shooting the nets). In para. 5(j) of the request for particulars, the Kirrixki was specifically asked if it was steered by autopilot in that period. In contrast to the oral evidence of Captain Antelo Malabe that the trawler was on autopilot during that period, the answer given to para. 5(j) of the request for particulars was in the following terms: “The MFV was now engaged in fishing and therefore needed to be manually steered to stream the lines and net and commence fishing on a set course with little deviation and reduced manoeuvrability.” (emphasis added). Not only is that answer inconsistent with the oral evidence of Captain Antelo Malabe, but it is also completely inconsistent with the notion propagated by him that the process of casting the nets and associated gear could be done on autopilot. The answer is also entirely on all fours with the evidence given by Captain McGettigan that the process of casting nets requires to be undertaken on manual steering.
181. In all of the circumstances outlined in paras. 165 to 180 above, I have come to the conclusion that the Kirrixki was not engaged in the process of casting its nets or related gear into the water in the period immediately leading up to the collision. On the contrary, I am satisfied, on the balance of probabilities, that the Kirrixki was, instead, steaming towards a different location in the fishing zone to recommence fishing operations there. In my view, the evidence to the contrary given by Captain Antelo Malabe is inherently unreliable. There is no objective evidence available to support his version of events. Nor was any of the trawler’s crew called to give evidence. While counsel for the Kirrixki sought to suggest that Captain McGettigan had gone so far as to agree with the skipper’s evidence, I do not believe that there is any support for that contention in Captain McGettigan’s evidence. It is quite clear that Captain McGettigan strongly disputed the evidence given by the skipper. In my view, counsel for the Kirrixki are mistaken in their reliance on a few words taken out of context where the expert said: “I can’t dispute his evidence. He gave his evidence like”. Recalling Captain McGettigan’s tone and demeanour, I did not view this as an acknowledgement that he accepted the skipper’s evidence as true. On the contrary, I understood Captain McGettigan to doubt the veracity of the skipper’s evidence. At best from the Kirrixki’s perspective, this is simply a statement that Captain McGettigan could not dispute that this was the evidence the skipper gave. In no sense, was it an acknowledgment that the evidence was true.
182. For completeness, I should address the argument made in the closing submissions of counsel for the Kirrixki that it is implausible that the trawler was speeding toward another fishing ground. First, they argued that he was already in a fishing ground. Next, they argued that, against the backdrop of Mr. Jackson’s evidence that he had been told that the skipper was facing the stern at the time of the collision, such a move would be a “kamikaze type of action for the skipper to propel forward straight into the HSH if he was facing the bow.” I do not believe that the first of those contentions carries any weight. Any consideration of fishing zone 7.j.2 shows that it covers a very large area of the sea. Within it, there may well be pockets that are, for one reason or another, considered to be more favourable than others. Having already fished at one point in the fishing zone, it would not be surprising if a skipper of a trawler decided to put some distance between that location and the next.
183. In light of the evidence that the trawler was on autopilot at the time of the collision and the casual manner in which the skipper treated the obligation to keep a look-out, I do not believe that there is any substance in the second suggestion made by counsel for the Kirrixki. Regrettably, the skipper appears to have regarded it as everyone else’s responsibility to keep a look-out and that he was not obliged to do so. As I have found, he was plainly prepared to proceed ahead at almost full speed without keeping a look-out. Counsel are right to characterise this as kamikaze action but this was, by the skipper’s own admission, precisely what happened on the night of 11th October 2019.”
Mr Justice Owens in 2023 Irish package holiday case on 03/10/2023:
“Defendant/Third Party : but how do you look at that… you do not have any other evidence to countermand or contradict what Captain Selvag said
Trial Judge: I do not have to accept the Captains evidence frankly that he believed he was saving this woman from suicide…. I don’t accept that I might as well let you know it is nonsense.”
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Mrs Justice Moulder in $300 million fraud claim in the England and Wales Commercial Court in
PJSC Tatneft V Gennady Bogolyubov Igor Kolomoisky Alexander Yaroslavsky and Pavel Ovcharenko
on 24/2/2021 in her decision stated
“Credibility of witnesses
Mr Syubaev
- Mr Syubaev was the Head of the Strategic Planning Department at Tatneft at the relevant time and is now a member of the management board of Tatneft. His duties at the relevant time included supervising Tatneft’s investments in UTN.
- It was submitted for Tatneft that he was a cooperative witness who “made every effort to assist the court” and his oral evidence was consistent with his written evidence (paragraph 949 of closing submissions).
- I do not accept that his oral evidence was consistent with his written evidence or that he made every effort to assist the court. He confirmed in cross examination that his witness statement was written by lawyers (who had previously interviewed him for that purpose) and not by him [Day 4 p11]. This limits the value of that evidence not only because on occasion he appeared not to know what was in that statement but somewhat surprisingly, despite having expressly adopted the witness statements in evidence in chief, could not confirm that it represented his evidence. “=========
Irish High Court Justice Tony Barr in Curran v Byrne & ors [2018] IEHC 722 (14 December 2018) found that
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269. I find that the plaintiff has lied continually in relation to what he told various third parties such as Dr. Lucey and his former solicitor about having had the iPad forensically examined. He also lied in is evidence to the Court in his denial that he sent the emails and his story that it was Eir who had removed his cabling and router in July, 2015. I find that his evidence to the Court on this issue has been a tissue of lies.”
Supreme Court Justice Gerard Hogan stated during one of his judgments as Judge of the Court of Appeal of Ireland
“37. There is also a further consideration. The trial in question lasted for six days in which the prison officers who were called to give evidence on the behalf of the State repeatedly denied that the plaintiff had been punched, even when the relevant CCTV evidence of the episode was shown to them. One prison officer went so far as to make the claim that that the prison officer who is clearly seen on the CCTV administering the punches was “putting his hand in two or three times to remove [the plaintiff’s] clothing.” It is, I regret to say, very difficult to avoid the conclusion that some of the witnesses tendered by the State told lies regarding this matter in the course of their evidence.
38. This is conduct which this Court should not tolerate for an instant. Accordingly, just as in Conway, this conduct calls for the award of exemplary damages to mark not only a grievous breach of the plaintiff’s constitutional rights, but also to mark the strong disapproval by the Court of an endeavour by agents of the State (namely, the relevant prison officers who denied in evidence that there had been an assault on the plaintiff) to hide their complicity in this wrongful conduct in the face of overwhelming evidence to the contrary.”