Practical Law

It’s the ultimate get-out for the lazy legal advisor: “I can’t tell you how it’s going to go, it will all come down to the evidence on the day and who the court believes.” The trouble is that it is so often true. Strong cases unravel after mere minutes of cross-examination, especially where it is one person’s word against the other.

There has been a crop of recent civil court decisions in which judges have given guidance on how to approach a he-said-she-said evidential dispute. What lessons can we learn?

What is credibility?

Credibility is not the same as honesty. Two witnesses can give perfectly honest accounts of the same events; one (or both) of them can be totally wrong. It is not uncommon to read as much in civil judgments.

For the purpose of gleaning some lessons on credibility from recent judgments, let’s assume that the conflict of evidence is not one that will be resolved by proving that one of the witnesses is a liar.

Starting point: is there really a dispute?

In my experience, judges will avoid controversy if they can. If there is a reading of conflicting evidence that indicates honesty from both witnesses, and if it explains where the conflict in evidence has arisen, a judge is likely to find it attractive. This is so even where that necessarily involves some speculation.

In Synclair v East Lancashire Hospital NHS Trust the claimant told a doctor that his surgical stoma had changed colour. A medical note, written by a different junior doctor, said “stoma normal colour”. The claimant was adamant that this junior doctor had not been present when he told the first doctor about the colour change. At paragraph 19, the judge said:

“…there is in fact no necessary inconsistency between the exchange as the Claimant recalls it and the record in the note. If [the doctor] had indeed said that the slightly darker appearance of the stoma was due to bruising… it seems to me that [the author] could have interpreted that… as meaning that the appearance including the colour of the stoma was normal…”

Though the judge did go on, in any event, to prefer the claimant’s evidence, this demonstrates a judicial tendency to prefer to rationalise two conflicting accounts.

Suggesting methods of rationalising the conflict is a stratagem I have successfully employed more than once. For instance, in a conflict between a client and witness as to how much had been promised under a contract, I was able to suggest that the higher amount recollected by the witness was more in line with the dollar conversion at the time. My client recalled a sterling sum. The witness was adamant that that was wrong, but the judge saw force in it.

The judicial toolkit

Judges, writing judicially and extra-judicially, have sought to identify those analytical tools that are properly available to their colleagues in determining answers to their questions.

The first tool: corroboration

It is trite that the first port of call for a judge assessing the credibility of a witness’s evidence on a given point is to compare it with contemporaneous evidence that does not depend upon human recollection.

The best known statement of principle in this area is that of Robert Goff LJ in The Ocean Frost at paragraph 57, which begins:

“…I have 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…”

In principle, such evidence will fall into one of two categories:

• Contemporaneous records (that is, those produced at the time of an event or soon after).
• Independent “direct” evidence that involved no human intervention (for example, photographs or voice-recordings).

Two recent cases demonstrate the courts’ approach.

Grimstone v Epsom & St Helier University Hospitals NHS Trust demonstrates how an evidential dispute can be resolved using contemporaneous records. The dispute concerned what was said to the claimant at a consultation with her doctor about a surgical procedure. The doctor could not recall what had happened but gave evidence of his “invariable” practice alongside corroborative medical records. The claimant’s evidence was different and spoke to her own recollection of events. The court preferred the records and the doctor’s evidence of his invariable practice.

Documentary evidence is preferred for precisely the reasons one would expect: the claimant had, by the time she gave her evidence, undergone a number of procedures and significant time had passed. She had had numerous conversations similar to the one in question.

Compare Synclair. In that case, the judge preferred the claimant’s evidence to medical records. The author of the records had not been called to give evidence. The key point was the uncertainty surrounding the circumstances in which the record was made. Reading the judgment, one comes to the conclusion that had the mysterious author given evidence of his presence, and that he would not have written “normal colour” if the claimant had suggested that it had changed, such evidence might have carried the day in line with Grimstone.

A practical lesson for litigators, then, is that contemporary records can be golden tickets, but they have to be presented properly to the court.

The second tool: inherent believability

In Caldero Trading v Beppler & Jacobson Limited, Richards J, pointing out the lack of useful documentation to assist in determining the contents of a contract, refers in paragraph 36 to “overall commercial probabilities” as a factor having great importance.

The third tool: internal consistency/reliability of other parts of the evidence

This is another of Richards J’s factors of great importance from Caldero. There are two aspects. First, and most unsurprisingly, if the judge does not believe a witness’s evidence is reliable on point A, and prefers the other side’s evidence, it is open to them to conclude that the witness is unreliable on point B.

Second, is the slightly different question of whether or not this is a witness who tends to speculate or attempts to give evidence on matters about which they cannot properly do so. Gillen J, in Thornton v Northern Ireland Housing Executive formulates the question: “does the witness take refuge in wild speculation or uncorroborated allegations”?

Of course, just because a witness is not believed (or is found to be lying) on one point, that does not mean that they are wrong on another (see, for instance, Arnold J in Gorgeous Beauty v Liu at paragraph 31).

The fourth tool: clouded recollection

Recollections can be affected by passage of time. However, the “clouding” metaphor suggests the invasion of some foreign element that makes the previously pure substance murky.

In Grimstone, it was the interposition between the initial consultation and the giving of evidence of other similar conversations. It can be less concrete. In Onassis v Vergottis, Lord Pearce asked if the witness’s recollection had been subsequently altered by unconscious bias, wishful thinking or over discussion with others. He considered:

“Witnesses, especially those who are emotional, who think that they are orally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism…that with every day that passes the memory becomes fainter and the imagination becomes more active.”

I had a case recently in which the court decided that my witness’s recollection was clouded by dislike of the claimant.

The fifth tool: demeanour

This is perhaps the most difficult (and most appeal proof!) tool. In Grimstone, what would the claimant have done if she had been given the advice she said the doctor negligently failed to give? During cross-examination, the claimant refused to answer whether she would have chosen a particular course of action had she been told that it was the best option. As a result, the judge determined that there was no doubt that she would have followed the recommended advice.

A witness’s demeanour can be important, but it is a nebulous concept and one that should be approached with caution. Understandably, emotion can change a witness’s demeanour. Courts will be alive to that. Equally, judges will, understandably, be slow to draw conclusions on demeanour where the witness is one for whom English is not their first language, or their cultural background is one with which the judge is less familiar.

It is important to understand these tools for two key reasons:

• There is a duty on lawyers to give full and frank advice on their clients’ prospects (this includes being able to understand the likelihood of the client’s evidence being accepted by the court or tribunal).
• The tools can be commandeered for case preparation and advocacy.

Assessing witnesses is a discipline reserved par excellence to judges. It is integral to what they do. If advocacy helps a judge to do their job (and do it in the way you want), this is the domain in which knockout blows may be landed.