I expect everyone likes to believe that if they give a witness statement, sign a statement of truth verifying its contents, and then give evidence on oath at a trial, they will be believed. But if one takes a look at how Courts approach witness evidence, there are important lessons to be learned and which should be given early consideration for any dispute, certainly in advance of starting a claim, let alone a trial.

The case law shows that the approach of judges in trials is often pragmatic and realistic; recognising that whilst witnesses may be doing their best, human recollection can become hazy, or even completely wrong, especially over longer periods of time. The recollection of a witness may be impacted by unconscious bias, or by wishing to help the party in whose case they are giving evidence.

In Jackman v. Harold Firth and Son Limited (2021) the High Court Judge set out some helpful principles as to witness evidence, including:-

• recollection expressed with confidence is not a reliable guide to accuracy

• where a witness has an interest in the outcome of the trial their recollection is likely to be biased

• in recalling historic events witnesses are (unconsciously) reconstructing those events, which process is fallible

• a witness's recollection needs to be tested against contemporaneous documentation

One judgment which is now widespread amongst commercial litigators is that of Gestmin v Credit Suisse (2019). The judge (Leggatt J) went as far as stating the following at paragraph 22 of the judgment:

 “22.  In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little i any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.”

…. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

What value does witness testimony serve?

So, if the Courts are placing "little if any reliance" on the recollections of witnesses, what then is the purpose of having their testimony at all?  The judge in Gestmin addressed this question as follows:  

“ This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events.”

It is important to note that whilst Gestmin provides some general principles for assessing evidence, this does not take away from judges their essential judicial function which is to make findings of fact based on all of the available evidence.

In some cases (although this is likely to be less and less the case as technology advances and there tends to be a "footprint" of almost every interaction) there are still some cases for which there simply are no contemporaneous documents. This may be because an agreement was reached orally and never confirmed in writing, even by email or other electronic communication. Or it may be that documents did exist but no longer exist, but again that will be increasingly unlikely over time.

Drawing inferences from documents

In O'Neill v. Avec International Corporation (2019) the Judge noted, given the prevalence of emails, text messages, and social media in the 21st century, that most agreements and discussion which are of legal significance leave some form of electronic footprint.  Factual findings should be guided principally by contemporaneous documents "and the inferences which would can be drawn from them and from known or probable facts". That means that even if contemporaneous documents, such that they exist, do not refer in explicit terms to the matters relied on by a claimant (or defendant), the court can draw inferences from those documents, or from known or probable facts.

An example: property investment business

Here is an example of drawing inferences from documents, or known or probable facts. Let’s say A and B have a verbal agreement to purchase an investment property in B’s name but with money from A. B later disputes that there is any agreement with A. Whilst there may be no written contract for the joint venture, the purchase by B will be a matter of record, as will the money moving from A's bank accounts to B’s. A can then argue that the contemporaneous documents are supportive of A's case of the joint-venture, the facts of which can be inferred from those documents.

What are the lessons for running a successful case?

In practice, before advancing a case you should

• obtain as much information as to what can be recalled as being said or agreed, including when, where, how and by whom things were said.

• locate all contemporaneous documents which are either supportive of the case (unhelpful documents should also be reviewed too) for an analysis of what those documents show, or what might be inferred from those documents.

These steps should be taken at the earliest stage in order to assess the strength of the case and to decide how to go forward.

See further for cases cited in this blog:

Jackman v. Harold Firth and Son Limited 2021 EWHC 1461

Gestmin SGPS S. v. Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), Kogan v Martin and others [2019] EWCA Civ 1645

Arroyo v Equion Energia Ltd (formerly BP Exploration Co (Colombia) Ltd) [2016] EWHC 1699 (TCC) (paragraphs 250-251).

O'Neill v Avec International Corporation (UK) Limited (Rev 2) (2019) EWHC 165 (QB at para 780)

This article was written by Toby Walker, Head of Dispute Resolution Partner at Allan Janes LLP. Toby and his team deal with cases where parties are seeking to uphold agreements for an interest in property or business.  Toby can be contacted on 01494 893529 or toby.walker@allanjanes.com