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Improving the Reliability of Witness Evidence

24 August 2021

In an ever-advancing digital world, the contemporaneous recording of events, be it by email, text or just a note, is now crucial if you want to strengthen your hand in court proceedings and be believed over your opposition.

When deciding whether to believe one person’s account of events over another’s there are numerous considerations a Judge will take into account such as the witness’ demeanour, whether their story has changed during the course of the proceedings and their inherent credibility (for example have they been found to have lied in the past). However, increasingly it seems that the overriding consideration is whether a witness is able to point to contemporaneous documents which support their account.

This article considers the judiciary’s recent approach to witness evidence and what you might do to maximise your chances of being believed by a Judge should you ever find yourself fighting a case in Court.

The Court’s Approach

Armagas Ltd -v- Mundogas SA (The Ocean Frost) [1986] A.C. 717

It all started in 1986, with Armagas – the case is broadly considered to be the ‘authority’ for the principle surrounding the importance of contemporaneous recordings. Goff LJ held that “I have always found it essential… when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case”.

Gestmin SGPS S.A. -v- Credit Suisse (UK) [2013] EWHC 3560 (Comm)

More recently, came Gestmin. Here, the fallibility of human memory was emphasised and Leggatt J held that the best approach to take was “to place little if 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. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length.

Having decided that the memory of a witness is unavoidably fallible, cases since 2013 have gone on to affirm this approach.

Jeffrey Ross Blue -v- Michael James Wallace Ashley [2017] EWHC 1928 (Comm)

In this colourful case, Mike Ashley escaped a £15m claim on the basis that the Claimant (Jeffrey Blue)  wished to rely on an oral and, crucially, undocumented conversation which took place in the Horse and Groom pub in 2013 where if the share price of Sports Direct doubled to £8 in the following 3 years whilst he provided his business management services, he would be paid a bonus of £15m. Amongst other factors such as alcohol consumption (apparently the pints kept coming like “machine guns”) and the ‘banterous’ tone of general pub-orientated discussions, Leggatt J held that no contract had been formed as the Claimant “did not make any written record of the conversation in the Horse & Groom” and there had been no intention to enter into legal relations (one of the key elements, as any law student will know, for a legally binding contract).

The approach in Gestmin was also recently approved by the Supreme Court in R (on the application of Bancoult no 3) -v- Secretary of State for Foreign and Commonwealth Affairs [2018] UKSC 3, in which Lord Mance held that he considered the “observations of Legatt J in Gestmin… have much to commend them. In particular, his statement at para 22 appears to me to be especially apt” – as quoted above.

Civil Procedure Rules

It is therefore perhaps unsurprising that the judiciary have attempted to strengthen the value of witness testimony in commercial cases and to improve how Judges might view this evidence and weigh it in the balance when testing the truthfulness of a party’s case. As of April 2021, there is a new practice direction to which trial witness statements in the Business and Property Courts must adhere. The most significant changes are the following:

Witness’s confirmation of compliance

There are two additions here in order to engage the minds of both the witnesses and legal representatives:

  1. There is a certificate of compliance from the legal representative which confirms that the relevant requirements have been explained to the witness and that the statement complies with the new Practice Direction and has been drafted in accordance with the “Statement of Best Practice” contained in the Appendix to the Practice Direction (essentially the lawyer is to have a very light touch when preparing a witness statement).
  2. There is a statement of compliance from the witness which is set out as a separate statement in addition to the statement of truth the witness must give. The statement now expressly confirms that the witness statement contains only the witness’s personal knowledge and recollection and that the witness has not been influenced by anyone else. The statement of compliance now reads: “I understand that the purpose of this witness statement is to set out matters of fact of which I have personal knowledge. I understand that it is not my function to argue the case, either generally or on particular points, or to take the court through the documents in the case. This witness statement sets out only my personal knowledge and recollection, in my own words. On points that I understand to be important in the case, I have stated honestly (a) how well I recall matters and (b) whether my memory has been refreshed by considering documents, if so how and when. I have not been asked or encouraged by anyone to include in this statement anything that is not my own account, to the best of my ability and recollection, of events I witnessed or matters of which I have personal knowledge.

Reference to documents

The Practice Direction now requires identification of what documents, if any, the witness has either referred to or been referred to by another for the purpose of providing the statement.

Strength of the witness’s recollection

The Appendix contains a requirement that, where there are crucial disputed matters of fact, the statement should, if practicable, state how well the witness recalls the matter in question, indicate whether that recollection has since been refreshed upon reviewing documentation and, if so, how and when.

Comment and Conclusion

The judiciary is clearly committed to re-establishing the value of witness testimony. The new practice direction may go some way to improving the quality of witness evidence and to test the truth of a party’s case. However, what is clear is that if you would like to be believed, the importance of recording events in contemporaneous documents is paramount and will continue to be the foundation upon which a Judge will base their findings.

This article is provided by Burlingtons for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. Should you have any doubt over any of the contents of this article or any queries regarding appropriate documentation in support of events please contact Dominic Holden or write to us using the contact form below.

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