Evidence is fundamental to the outcome of any civil litigation case because, ordinarily, the facts in issue in a case must be proved by evidence and the judge will decide the case on the evidence adduced by the parties.  Quite often such evidence is contained primarily in witness statements but Judges are becoming increasingly critical of oral evidence and are finding ways to disregard it altogether so they can base their factual findings on the (often extensive) documentary evidence instead.  The recent case of Northampton Borough Council v Cardoza & Ors [2019] EWHC 26 (Ch) serves as a useful reminder of the law relating to the judicial assessment of witness credibility and the desirability to have hard evidence where possible to support any case.

On 6 December 2019, the Witness Evidence Working Group, led by Popplewell LJ, published its final report on factual witness evidence in trials before the Business and Property Courts (B&PCs).  The report highlighted that, while the current practice has various advantages, there are several drawbacks, notably in relation to achieving best evidence, the length of witness statements and the relevance of their content.  The Working Group emphasised that Witness statements, especially those subjected to numerous drafts and iterations, are often far from the witness's own words and that throwing witnesses into cross-examination puts them on the defensive and can skew the oral evidence before the court, especially given the time pressure on trials in the B&PCs. In turn the Group found that this may encourage counterproductive over-lawyering and lengthening of witness statements in an attempt to anticipate cross-examination.

The recently court reviewed the law relating to judicial assessment of witness credibility in Northampton Borough Council v Cardoza & Ors [2019] EWHC 26 (Ch).  The case was brought by the Claimant who was the assignee of rights of Northampton Town Football Club.  It brought an action against former directors of the club (and a wife of one of the directors) for inquiries and accounts relating to the defendant’s period of control of the club and in particular to ascertain what happened to a £10.25m loan intended to revamp Sixfields in 2013.  The Claimant sought damages and alleged that the Defendants formed “grubby deals” with a set of developers to pocket millions of loan money for themselves in breach of their Directors’ Duties.  Witness credibility was a central issue in the case.

In these proceedings, the court referred to the factors identified for the evaluation of a witness' evidence in Painter v Hutchinson when addressing the unsatisfactory nature of a defendant's approach to giving evidence. These included:

the provision of evasive and argumentative answers;

tangential speeches avoiding the question;

blaming legal advisers for shortcomings in statements of case, disclosure and evidence; and

self-contradiction, internal inconsistency, shifting case, new evidence and selective disclosure.

The guidance in Painter was further developed in Gestmin SGPS SA v Credit Suisse (UK) Limited in which the court noted that human memory is fallible and that the process of litigation and preparing for trial tends to interfere further with the reliability of human memory, particularly where a lawyer has had a hand in drafting a witness's evidence and the witness's memory has been refreshed by reading documents.  Applying the guidance in Gestmin, the courts will always strive to base factual findings on facts and documentary evidence and the inferences to be drawn therefrom. By contrast, witness evidence (whether oral or written) is to be regarded and relied on only with a great deal of caution.

In following this guidance, the evidence of the first and second defendants in the present case was largely dismissed as wholly unreliable. Of the former, the judge found that his "demeanour as a witness was urbane and engaging. However, his demeanour is a front for a person who, at least in business and in litigation, is thoroughly untrustworthy". Of the latter, the judge found that, “…truth is a concept of no value or significance to [the second defendant], even when on oath. As with [the first defendant], unless consistent with undisputed facts or supported by independent documents, [the second defendant]'s evidence was, and is to be viewed as, unreliable.”

However, the potential shortcomings in a witness's testimony are not always so immediately apparent. In such circumstances, practitioners must keep at the forefront of their minds the remarks of Leggatt J in Gestmin. "…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".

Lord Justice Leggatt has made detailed observations about why even the evidence of truthful witnesses is ‘fallible at best and unreliable at worst’, simply because of the way memory works. Contrary to common perception, memories are not, he said, fixed mental records of events which gradually fade over time. Instead they are distilled meanings or impressions derived from (frequently flawed) perceptions of those events, which are then subjected to powerful biases when reconstructed for the litigation process.

Lord Neuberger’s view is that “There is an argument for abandoning oral evidence”.  His view was that “…the best approach for a judge to adopt in the trial of a commercial case is to place little if any reliance 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”. These observations have since been endorsed by other judges in numerous cases, as well as by expert and academic psychologists. 

Wherever the judiciary end up on the issue of witness evidence, one thing is abundantly clear - hard copy, objective, contemporaneous evidence will always be much more persuasive than oral evidence from a witness.  If we all ran our affairs with this in mind, we would find ourselves in a significantly stronger position should litigation ensue.