The recent case of Vallen International Limited v Lewis and another [2012] EWJC B5 (QB) involved consideration of the approach civil courts take to fact-finding where there is conflicting witness evidence on key issues. HHJ Simon Brown QC, sitting as a High Court judge, referred to key authorities and commentary which provide guidance on this question.

One commentary indicates that the court should first identify “common ground between the parties…such as facts as are shown to be incontrovertible.” Documents created prior to the dispute often set out much of the knowledge and intentions that the parties had at a particular time, independent of human recollection. Relying on contemporaneous documents enables the court to judge the oral evidence of witnesses “against a background not only of what the parties agree to have happened but also of what plainly did happen, even though the parties do not agree.

The commentary suggests a five point test which the courts can use in assessing the honesty of witness testimony:

  1. the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;
  2. the internal consistency of the witness’s evidence (i.e. are different elements of the witness’s evidence consistent with each other?);
  3. consistency with what the witness has said or deposed on other occasions;
  4. the credit of the witness in relation to matters not germane to the litigation;
  5. the demeanour of the witness.

Case law reiterates the crucial importance of documents:

when considering the credibility of witnesses, always test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also pay particular regard to their motives and to the overall probabilities.

In most civil cases there is usually an abundance of documentary evidence against which witness testimonies can be assessed. However, the absence of written documentation may also be significant:

if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence and the judge may be able to draw inference from its absence.

It is clear that evidence contained in contemporaneous documents is key to courts’ assessment of witness evidence and that witness evidence that is inconsistent with contemporaneous documents is likely to be subject to close scrutiny.  The emphasis on evidence in documents means that the parties’ document management and preservation systems play an important role in managing disputes effectively.

Please speak to Julian Johnstone, head of Druces LLP’s Litigation & Dispute Resolution team for more information.

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