Calling a hostile witness

First, for transparency, I am acting for the local authority in this HB appeal, not the claimant - if that puts anyone off from responding on this site I fully understand.  Can’t say too much, it’s a complex case of a type you see more and more these days.  I can assure you, though, I am on the side of the angels with this one.

If you are still with me up to here, I’ll get to the point.  I would like the Tribunal to hear from a key witness.  He is likely to be sympathetic to the appellant - the local authority’s case relies somewhat on bad faith on the part of this witness.  The other side doesn’t want to call him. They say: if you want to hear evidence from him, call him as your witness.

Now, the Tribunal has directed that any party wishing to call a witness should submit a witness statement ahead of the hearing.  This all seems a bit awkward to me: am I supposed to obtain a statement from a witness who is hostile to my case, then cross-examine my own witness in order to discredit his statement?  Should I call him as my witness, get him to answer my questions in writing and submit the answers by way of a witness statement, then during the oral hearing attack the very statement I have submitted myself?

What I have asked the Tribunal to do is direct the witness to attend as a sort of witness for the Tribunal rather than a witness for one side or the other.  I am happy to let him have advance sight of the questions I want to ask him.  I’m just not comfortable with calling him as my witness.

Anyone been in this position (on either side) and how did you handle it?

Thanks

The tribunal may want to call him rather than you- they have the power under Rule 16 to call witnesses if they want to, this would sidestep any need for either appellant or respondent to call them.

I would categorise someone as a hostile witness in an adverserial proceeding such as Employment Tribunal, rather than a beneift appeal, which is ostensibly an assessment of whether the conditions of entitlement exist, or not, as the case may be.

In that respect and from your perspective, any witness is just ‘a witness’ rather than being yours or theirs. I wouldn’t have any compunction whatsoever in dismantling the arguments of a witness if it produces a result that lands on the side of the angels

Although I have done cases, such as child support and child tax credit appeals, where I have had to directly and aggressively question the other parent who has been present at the hearing at the direction of the tribunal, I have never been in the position you describe.

I agree with Brian.  I don’t think it right to import the terminology concerning witnesses from adversarial trials in the courts and tribunals (criminal or civil) into social security appeal tribunals.  If the witness has already made some sort of written statement which is included in the appeal papers then that might satisfy the “witness statement” requirement.  And I too would have no compunction in aggressively questioning him at the hearing.  I would ask the tribunal to call him.  I don’t think it appropriate to expect you to do it in such a scenario.

I would ask the tribunal to call him.  I don’t think it appropriate to expect you to do it in such a scenario.

Thanks, that was my thinking.  By the way, I gather the term “hostile witness” is a legal term of art, here I am using it in the everyday sense of a person who is both a witness and someone who is not kindly disposed to my case.

Benefit Tribunals are indeed inquisitorial rather than adversarial, but cases in this subject area do a pretty good job of waddling and quacking like adversarial proceedings.  Don’t want to say too much here.

I think the significance of a hostile witness is that normally you can’t cross examine or lead your own witness - they give their evidence, the other side cross-examine them and try to get them to say things that harm your case and/or contradict their evidence in chief, and then you get the chance to re-examine them and correct the entirely misleading impression that the cross-examination has created. By treating a witness as hostile, you are able (and really expected) to question their evidence in chief (their witness statement) and lead them into agreeing with a different version of the truth.

As other people have said, it doesn’t fit very well with the idea of the benefits tribunal being more inquisitorial - ideally the judge will be asking the right questions if you’ve laid it all out for them in a handy skeleton.

If the judge decides to summon the witness I don’t know whether that would count as your witness (you have requested the witness, but perhaps the judge has called them on their own initiative). But I think if it gets that far it’s because the judge has understood the situation, and so would presumably allow you to cross-examine and lead the witness.

I hope you will let us know how it pans out.

Thanks Timothy

I’ve never experienced this scenario in a tribunal setting but if faced with it I’d be worried about the tactics. The general rule of thumb for advocates in cross-examination is never ask a witness a question if you don’t know how they’ll answer. And from the tribunal’s perspective why should they summon a witness who neither party wants to call?

If this witness is sympathetic to the appellant why don’t they call him/her? Is it because they fear he will prove to be less sympathetic to their case than you think he/she will? Or are they trying to corner you into calling him/her so that they can cross-examine and you can’t.

If your case is that the witness acted in bad faith why not just put the evidence of bad faith before the tribunal? Presumably it’s available in some form and a tribunal doesn’t have to worry about hearsay. That puts the ball back in the appellant’s court (sorry- terrible metaphor) or may lead the tribunal to conclude that it needs to hear from the witness personally in order to reach the right decision.