A case-study in witness credibility: Deakin-Stephenson v Behar & Anor [2024] EWHC 2338 (KB)

Amelia Williams

Background:

In November 2016 the Claimant collapsed with acute abdominal pain whilst in a hairdresser in Fulham, London. Investigations at A&E revealed that she had developed diverticulitis with a localised perforation. Her surgeon, Mr Behar, tried to treat it conservatively with intravenous antibiotics and fluids but the disease continued to progress. Mr Behar therefore carried out a laparoscopic lavage, after which the Claimant’s condition settled for over 24 hours. However, later on the following day, she collapsed with severe abdominal pain and Mr Behar completed a Hartmann’s procedure.

At the time of trial the Claimant continued to suffer from chronic abdominal pain and other conditions, including PTSD. She brought a claim against the Chelsea and Westminster Hospital NHS Foundation Trust and her surgeon, Mr Behar, for allegedly failing to refer her to a colorectal surgeon upon her request, failing to obtain informed consent, delaying surgery, and improperly inducing her to transfer to the private wing of the hospital.

Decision:

The case turned on the credibility of the Claimant and her witnesses who were her sister, mother and ex-partner. The Judge, Dexter Dias KC, set out 13 key principles to be followed when the court is determining disputes of fact between parties [53] before then proceeding to consider the evidence.

The Judge considered the Claimant’s character and conduct in the witness box. He noted that the Claimant had developed an encyclopaedic knowledge of the details and dates within the trial bundles and had read in depth into the medical literature about her disease and the available treatments [59]. She was “plainly a person of substance” [58] and was a highly intelligent person, someone who has been an autonomous highly responsible professional person, a leader, who is inquisitive, with the ability to be assertive and challenging[97]. However, the Judge noted that her conduct in the witness box was variable and she could tip to being argumentative with counsel. Of particular relevance was that “when she was confronted with evidence that did not assist her, she sometimes struggled and was uncooperative” [63]. The Judge found that she had the insight to recognise evidence and answers that would be unhelpful to her case and tried to avoid them, which impaired her credibility.

The Judge highlighted various instances where the Claimant’s evidence was unconvincing when considered in light of the documentary evidence. For example, at one point the Claimant said that there was no time to raise her concerns about the alleged refusal to make a referral to a colorectal surgeon in a meeting with Mr Behar, but the Court noted that the transcript of the meeting showed that it lasted 71 minutes [66]. The Claimant’s case also ran contrary to contemporaneous documentation such as the Claimant’s comment in a meeting shortly after the procedure that she had “no complaint” and Mr Behar “had been amazing looking after me and saving my life” [66]. The Judge further observed that she sent an email raising various complaints after the surgery but that email made no complaint about how the Claimant ended up in private care, nor that a request for referral to a colorectal surgeon was refused; two points which were central to her case [70-73].

Just over one month after her discharge the Claimant posted a review on the internet about the treatment she had received from Mr Behar, awarding 5 stars to Mr Behar in all three available categories, and commenting that “Mr Behar operates on me twice and literally saved my life….I was so very ill, Mr Behar did not give up on me at any time…Mr Behar, thank you for saving my life and being so unbelievably amazing.” The Judge found that this review was “a strong and contemporaneous indication of her true response to Mr Behar’s treatment” [100].

Finally, the Judge found some of the evidence from the Claimant’s witnesses was part of a “common line that the family was advancing” [116]. There were strikingly similar spelling errors in the statements of the Claimant and her witnesses which the Judge found were so distinctive that they cannot sensibly be explained except through consultation and collaboration between the claimants’ witnesses” [106]. The statements also all made reference to an inconsequential and irrelevant detail of eating roast chicken [144].

Ultimately the Judge found that as time had gone on since the surgery the Claimant had reflected on what had happened to her and Mr Behar had become the target of her unhappiness and trauma. She had as a result adopted an inaccurate narrative which did not reflect the contemporaneous documentation. The Claimant’s case suffered from “story creep” [149].

Comment:

The judgment in this case is a careful and detailed analysis of witness credibility and the various factors which the court can and will take into account when determining disputes of fact between parties. It will doubtless be useful reading for anyone involved in a case which turns on the evidence of the witnesses; particularly helpful is the summary of the relevant principles found in the case law. The Judge also considered a number of contemporaneous documents when assessing the credibility of the accounts given by the Claimant and her witnesses. It is therefore a reminder of the impact that good record keeping can have on any future claim.

Sydney Chawatama and Andrew Kennedy KC, both of 1 Crown Office Row, represented the Claimant and First Defendant, respectively.