Documentation, documentation, documentation in Civil Court Cases

Date: 04/02/13 Author: Ian Gee

Documentation, documentation, documentation in Civil Court Cases

In a recent case, the Judge made reference to comments from an article and other court cases for guidance as to how evidence is evaluated where there is conflict.  The following are extracts (JWK has placed text in bold) :-

The normal first step in resolving issues of primary fact is to add to what is common ground between the parties such facts as are shown to be incontrovertible.  In many cases, letters or minutes written well before there was any breath of dispute between the parties may throw a very clear light on their knowledge and intentions at a particular time.

It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and imagination becomes more active.  For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred.  Therefore, contemporary documents are always of the utmost importance.  Lastly, although the honest witness believes he heard or saw this or that, it is so improbable that it is on balance more likely that he was mistaken?  On this point it is essential that the balance of probability is put correctly into the scales when weighing the credibility of a witness.  And motive is one aspect of probability.  All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process.  And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.

The main tests are :-

(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;

(3)        consistency with what the witness has said or deposed on other occasions;

(4)        the credibility of the witness in relation to matters not germane to the litigation;

(5)        the demeanour of the witness.

It is essential, in cases of fraud to test veracity by reference to the objective facts proved independently of testimony, in particular with reference to the documents in the case, and also to pay particular regard to motives and to overall probabilities.  It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is conflict of evidence reference to the objective facts and documents, to the witness’s motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.  In commercial cases, there is usually a substantial body of contemporary documentary evidence.

The task is not to be carried out merely by reference to the impression that a witness made giving evidence in the witness box.  It is not solely a matter of body language or the tone of the voice or other factors that might generally be called the “demeanour” of a witness.  The Judge should consider what other independent evidence would be available to support the witness.  Such evidence would generally be documentary but it could be other oral evidence.  This may be particularly important in cases where the witness is from a culture or way of life with which the Judge may not be familiar.

Contemporaneous written documentation is of the very greatest importance in assessing credibility.  Moreover, it can be significant not only where it is present and the oral evidence can be checked against it.  It can also be significant if written documentation is absent.  If the Judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that 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.

So, it is very apparent that documentation is essential to a Judge’s fact finding.  It follows that it is fundamental to carefully keep all documents, in anticipation of any future dispute that will have “momentous consequences on the parties’ lives or fortunes”.

The courts have made it clear that they will view data destruction, whether deliberate or otherwise, as a serious matter and will draw adverse inferences which could be very damaging to a party’s case.

For further information, please contact Ian Gee on 01524 598304 or

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