REUTERS | Randall Hill

It ain’t necessarily so: identifying reliable evidence in the light of Burgess v Lejonvarn

All lawyers know that a thing is not necessarily true because a client or a witness says it. To advise a client, involved in a dispute where there is a conflict of evidence on important issues, we need to know how judges will resolve this conflict. How do they decide which witness is honest and which dishonest, which is reliable and which unreliable? The guidance from the courts has been consistent. The contemporary documentation, such as letters, minutes or notes, written well before there was any breath of dispute between the parties, is of crucial importance. The trial judge will also consider the admitted facts and the overall probabilities. The recent decision in Burgess v Lejonvarn illustrates the application of these rules.

Mrs Lejonvarn, a friend and former neighbour of the Burgesses, helped them with a garden landscaping scheme. There were many disputed facts. The main witnesses at trial were Mr Burgess and Ms Lejonvarn (Mrs Burgess’ evidence generally followed that of her husband). The Burgesses’ evidence conflicted with Ms Lejonvarn’s evidence. The trial judge preferred Ms Lejonvarn’s evidence on all factual issues save one.

The trial judge emphasised three aspects in which Mr Burgess’ evidence was unsatisfactory:

  • It was often inconsistent with the contemporary documents.
  • He gave a lot of evidence about what he thought the defendant was doing in the UK, but he was in Majorca for significant periods of times.
  • His answers during cross-examination were very argumentative.

In contrast, the trial judge said this about Ms Lejonvarn’s evidence:

  • It was largely consistent with the contemporaneous documentation.
  • She answered questions clearly and concisely, with an impressive grasp of the contemporaneous documentation.
  • Generally, she did her best to assist the court by giving clear and direct answers to the questions without being argumentative or evasive.

The lesson for all lawyers is simple: read and know the contemporary documents. That is almost certainly where the history is set out. If your client or witness is giving an account which is different with that record, consider what if any valid or acceptable explanation there can be for that difference. Without such an explanation the client’s or witness’s account is likely to be rejected. Burgess shows that judges regard the contemporary documents as the best evidence of what happened before the parties fell out and before the hardening of attitudes caused by litigation. Judges are also adept at recognising and rejecting speculation as to what may or may not have happened.

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