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Good witness covered the sofa but not the expense of litigation

Not so long ago I acted for a husband and wife in their claim against an interior design company. The claim involved a catalogue of complaints about misinterpretation of instructions, bad workmanship and poor accounting. There was some business about leather skins intended to cover the sofas, which I never got to the bottom of. On the day of the trial the interior designer arrived with two enormous rolls of what turned out to be the very leather in dispute. I learned two lessons of general application from the experience: the attributes of a good witness and the shortcomings of legal expenses insurance.

When I met the couple, before the trial, the husband explained to me that his wife would not make a good witness. She dutifully hung her head, shaking it in agreement. I asked why he thought that was the case. 'Oh, she's not looking forward to it, ' he replied. Well, show me someone who is looking forward to going into the witness box and I will show you a bedlamite. Even experienced expert witnesses will not feel much like their breakfast on the days when they are to give evidence. And they have been seen leaving court in a bit of a rush when their evidence is agreed by the other side, just in case someone changes their mind.

In fact, I have yet to meet a lay person who can accurately predict who will make a good witness. This is the sort of thing to look out for:

someone who does their best, despite their dimmed recollection, poor understanding and nerves, to give clear thoughtful answers to the judge;

someone who does not have an axe to grind, does not need to get something off their chest and does not confuse the witness box with a soap box;

someone who does not pick an argument with counsel, asking questions instead of answering them and pointing out that counsel has referred to the wrong paragraph in the pleadings, clause of the contract or whatever;

someone who is not afraid to agree with the questioner if the questioner is right;

someone who has the courage to disagree with the questioner if the questioner is wrong; or someone who does not agree to everything or answer 'I can't remember' to every question because it seems like a good way of bringing the whole ghastly business to a rapid conclusion.

So the confident, the cocky and the opinionated do not make good witnesses. Nor do the defensive, the wary and the fence sitters.

Needless to say, my lady made a brilliant witness. She helped the judge with her straightforward detailed answers explaining the consequences of the designers' shoddy job to her as a working mum and her family in a fairly, but not totally, dispassionate way. Her husband did not fare so well. When asked: 'Did you allow the designers to inspect the remedial decorations?' he answered proudly 'Yes, but I would not let them turn the lights on.'

So much for witnesses.

The claimants would never have brought this action had it not been for their legal expenses insurance. The cover, which came with their household insurance, was subject to a limit which seemed more than enough at the time but was nowhere near enough to see the claim through to judgment.

On day four of the trial, the legal expenses insurer explained that the cover had run out and that if the matter was to proceed the claimants would have to pay for it themselves.

Had they been faced with that prospect at the outset they would have put the unfortunate dispute behind them and got on with their lives rather than take on the expense and uncertainty of litigation. There followed a rather hasty settlement, which benefited no one, least of all the insurer, who went away muttering that the insurance was not in the nature of a pay out but more of a loan to be recovered from the losing side.

So legal expenses insurance has its limitations and can encourage those who would not ordinarily play the litigation game and then leave them high and dry when the stakes are the highest.

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