The Witness Who Wants to Change His Story
You act for the plaintiff, Nadia, in a workplace bullying claim against her former employer, Corvid Ltd. Nadia's key witness is Tom, a former colleague. In his signed statement Tom said he saw the manager shout at Nadia in front of the team on 14 March. Two days before the hearing, Tom calls you. He says he has been offered a job by Corvid's HR manager and is now 'not so sure' about the date. He asks whether he 'has to' give evidence and whether he can 'just say he can't remember'. He also says Corvid's solicitor, Ms Vale, called him at home last night and asked what he planned to say. Tom is anxious and wants the call to 'go away'. Nadia has told you she will 'lose everything' if Tom does not testify.
1. Identify the ethical issues arising from Tom's call and Ms Vale's conduct, and explain what you can and cannot do.
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Several distinct issues arise: witness coaching, contact with a witness by the opposing solicitor, and pressure from the client.
1. Tom's change of story. Tom is entitled to give evidence truthfully as he recalls it. He is not obliged to give evidence at all, and he can be subpoenaed if necessary. You must not pressure him to adhere to his statement. You can explain the consequences of giving evidence, the obligation to tell the truth, and that he may be cross-examined. You must not suggest he 'just say he can't remember' if he does remember, and you must not draft a new statement for him that reflects a version he does not hold.
2. The job offer. The timing is suspicious. You should ask Tom whether the offer is connected to his evidence. If it appears to be an inducement, that is a serious matter for the court and may amount to attempting to pervert the course of justice. You should not accuse anyone without basis, but you should make a file note and consider raising it with the court.
3. Ms Vale's call. A solicitor contacting a represented party's witness directly, without notice, to ask what they will say, is improper. It may amount to an attempt to influence the witness. You should not retaliate in kind. You should record Tom's account, advise him he is not obliged to speak to Ms Vale, and consider writing to Ms Vale asking her to direct any contact through you. If the conduct continues, you may raise it with the court.
4. Nadia's pressure. Nadia's distress is understandable, but you cannot let her pressure Tom. You should explain to her that Tom must give his own evidence and that pressuring him would harm her case and be improper.
2. How should you respond to Tom, and what steps should you take before the hearing?
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Response to Tom:
- Thank him for calling and reassure him that he is not obliged to speak to Ms Vale; he can refer her to you.
- Explain that he must tell the truth as he recalls it, and that if he genuinely cannot recall the date, he should say so. He should not pretend to forget if he remembers.
- Explain that he may be cross-examined and that his earlier statement may be put to him. This is normal and not a punishment.
- Explain that he can be compelled to attend by subpoena if necessary, but that the decision to give evidence voluntarily is his.
- Ask whether the job offer is connected to his evidence, and record his answer.
- Do not offer him any inducement, and do not suggest wording for a new statement.
Steps before the hearing:
- Make a detailed contemporaneous file note of the call.
- Write to Ms Vale confirming that Tom is a witness for Nadia and asking that all contact be through you. Keep the tone professional; do not allege misconduct unless you have evidence.
- Consider whether to raise Ms Vale's contact with the court. If the job offer appears to be an inducement, this may need to be disclosed to the court and possibly to the regulator.
- Advise Nadia candidly that Tom's evidence may change and that the case must be prepared to proceed without it. Do not promise her that Tom will testify as she hopes.
- Consider whether Tom needs separate legal advice about the job offer and the contact from Ms Vale.
- Prepare Tom for cross-examination honestly, without coaching him to a particular version.