Factual witness evidence: recent lessons from the courtroom

Cases frequently succeed or fail based on the strength of their factual witness evidence. But what does “strong” witness evidence actually look like in practice? Stephanie Panzic draws upon recent case law to illustrate three key attributes of a compelling witness: they should be supported by documentary evidence, appear authentic, and be well prepared. 

Support

It is critical for a witness’s evidence to be backed up by documents. Simply put, memory cannot be trusted. This point took centre stage in Instrument Product Development Ltd v W D Engineering Solutions Ltd,1 in which the Deputy Judge began his judgment with a thought-provoking paragraph: 

“In a noted study published in 1981, ‘Role of schemata in memory for places’, the psychologists William Brewer and James Treyens reported on a simple but revealing experiment they had conducted. Each of the 87 study subjects was asked to wait briefly in an office before being led into another room. In that second room, they were asked to write down a list of everything they had seen in the office. The overwhelming majority recalled seeing typical office furniture – a desk, chairs, shelves and so forth. That was unsurprising since they had seen such items only seconds earlier. Thirty per. cent recalled seeing books and ten. per cent recalled seeing a filing cabinet. That was more unusual because the office contained neither books nor a filing cabinet.”

The case itself involved two considerably different accounts of the same telephone conversation. The Deputy Judge preferred the witness evidence that was more consistent with documentary evidence. The point in time at which those documents were created is also important: the Deputy Judge noted that he derived no assistance from correspondence exchanged between the parties after their relationship had soured. 

A phone call was also important in Mansion Place Ltd v Fox Industrial Services Ltd.2 A defendant claimed that a conversation resulted in a binding agreement that the claimant would forgo any right to liquidated damages in return for the defendant forgoing any right to claim payment for loss and expense as a result of the delay. The claimant said that no such agreement was made. Following an adjudicator deciding in the defendant’s favour, the claimant commenced proceedings in the TCC. Despite contradicting accounts of what was said during the phone call in question, Justice Eyre was persuaded that each party was “seeking to give his honest recollection of what had been said and that neither of them was deliberately seeking to mislead me.”. Accordingly, the judge moved on to consider such evidence “through the prism of contemporaneous documents”, making the observation that, “to the extent that the contemporaneous documents in particular show a picture different from that depicted by a particular witness it is the former and not the latter which I should regard as more likely to be an accurate account of what happened”.3 The judge found that various documents, including the defendant’s internal correspondence following the conversation, were more supportive of the claimant’s recollection of the call. 

In today’s age of technology, documentary support is not just about traditional “documents”. For example, in AM Construction Limited v The Darul Amaan Trust,4 a key piece of evidence was footage from a “Ring cam” (a motion-activated security camera). The case turned on what was in an envelope posted through the door to the claimant’s registered office by a process server. The defendant said that it contained a notice of adjudication; the claimant said that the notice of adjudication was missing (and, therefore, the subsequent adjudicator’s decision was unenforceable). In considering the witness evidence, the Deputy Judge found several inconsistencies in the evidence of the process server, which were brought to light by the Ring cam footage submitted by the claimant:

“… there were parts of Mr. Walker’s evidence that I did not find reliable. First, his oral evidence that he tried to find someone in at about 3 p.m. is refuted by Mrs Anwar’s evidence that she had been in all afternoon and nobody had rung the doorbell, her evidence in this regard being supported by the absence of any ‘Ring’ footage of such an attempt.”

“… the ‘Ring’ footage completely destroys the suggestion that Companies House was contacted after a failure to effect personal service …”

Although those findings did not answer the question about what was in the envelope, they were sufficient to tip the balance in the claimant’s favour:

“At the end of the day, I have to decide between a witness describing what was to her a highly unusual event whose account is supported by emails sent within a couple of hours of the delivery of the envelope (Mrs Anwar) and a witness describing a routine process whose evidence I have concluded was unreliable in certain respects (Mr Walker). I have come firmly to the conclusion that Mrs Anwar’s evidence is to be preferred.”

Importantly, a lack of documentary evidence for a case can be just as damning as adverse evidence. For example, in Vardy v Rooney,5 a key source of evidence was WhatsApp messages sent between Ms Vardy and her agent. However, the agent claimed that she had accidentally dropped her phone into the North Sea, whereas Ms Vardy claimed that her messages had been lost when her phone back-up failed. The judge was sceptical of these accounts and noted that various precedents provide that the court may draw adverse inferences where a wrongdoer has parted with relevant evidence.6

Authenticity

Judges and juries can also be persuaded by the general “manner” of a witness: a seemingly authentic witness is more likely to be believed. 

In Instrument Product Development Ltd v W D Engineering Solutions Ltd, the Deputy Judge observed that the sole witness for the unsuccessful defendant seemed to have no, or almost no, recollection of areas that might reflect poorly on the defendant’s case whereas, on other points, his evidence was lengthy and detailed and frequently came across as pre-prepared and only tangential to the points in issue.7

Taking a more popular example, in the infamous defamation trial between Johnny Depp and Amber Heard in Virginia,8 Amber Heard’s oral evidence was widely panned by laypeople on social media as appearing fake and exaggerated. One attorney remarked to CNN that “there’s something a little unauthentic, a little rehearsed about her testimony”.9 In the context of this jury trial, Ms Heard’s manner is likely to have led to her downfall but, notably, in a similar trial in London in front of a judge rather than a jury, Ms Heard was successful. It is generally the case that a judge will be less persuaded by the general demeanour of a witness, although that does not mean it will be completely ignored. In Mansion Place Ltd v Fox Industrial Services Ltd, Justice Eyre provided some helpful commentary on this point:10

“In assessing those competing accounts, I will have some regard to the demeanour of the witnesses and the impression I formed having seen them in the witness box. However, in doing so I remind myself that by itself, demeanour can be an unreliable guide to the reliability of a witness’s evidence. In part this is because of the inherent unreliability of any judicial assessment of demeanour. What might appear to one judge to be evasion and a reluctance to answer questions indicative of unreliability in the evidence of a particular witness might to another judge be seen as commendable caution and care in giving evidence indicative of the reliability of the same witness’s evidence.”

Preparation

The fact that a witness appears authentic does not automatically mean that their evidence will come across well. Proper preparation for a hearing is critical, both in terms of familiarity with the subject matter of the case and general trial processes and conduct. 

Returning to Instrument Product Development Ltd v W D Engineering Solutions Ltd,11 the Deputy Judge was candid about his views on the various witnesses. One was described as “a helpful witness” who “gave comprehensive answers but ones that were always responsive to the question asked”, “accepted where he felt his recollection was unclear”, “acknowledged where matters were outside the scope of his knowledge”, and “understood his obligations to assist the court”.12 His review of another witness was less complimentary: “had a discursive manner, and often gave long answers to the question that did not always address the point being put to him”.13 As already mentioned, the Deputy Judge was even more critical of the sole witness for the defendant and, ultimately, determined the case in favour of the claimant. 

Witness familiarisation training is becoming increasingly popular, where witnesses are educated about how hearings are conducted and how to be cross-examined well, often using role-play (based on a fictional hearing) as a tool to improve the witness’s skills. It is also important to ensure that a witness is familiar with what he or she says in the written statement (many months may pass between drafting the statement and giving oral evidence), the documents referred to (just because something is in a footnote does not mean it can be ignored), and any contrary accounts given by the other side’s witnesses. Proper preparation can be the difference between a satisfactory witness and an excellent witness. 

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Stephanie Panzic

Tel: +44 (0)20 7421 1986