Journal Detail back to listing

Do judges believe witnesses?

• Dec 28, 2022
• Latest Journal

by: Mark Surguy, Partner - www.weightmans.com

Finding and presenting evidence is of supreme importance In a criminal trial it is the jury which decides who is telling the truth and who is not. By contrast, unlike in the United States where criminal and civil cases are both heard by a jury, in Great Britain a civil judge sitting by themselves, performs the function of the jury. The judge considers the oral and documentary evidence of the witness and listens to the arguments made by the barristers for and against the rival cases.

Most cases come to trial very many years after the events, giving rise to the dispute, took place. We all know that memories fade with time. In a busy world it is difficult to remember what happened 24 hours ago never mind many years ago. Once you have spent time with the lawyers discussing the case and being involved in writing a witness statement, it is more difficult to distinguish between what a person recalls, what they would like to recall happened, and what they have learned on the way which then masquerades as an accurate recollection but is nothing of the sort. An unreliable witness does not have to be a dishonest witness.

Judges are well-accustomed to confronting these biases of memory. They may not believe the recollection of either side to be really that reliable. Contemporaneous documents made or sent at the time of the events in question are often considered to be a more reliable source of the truth of what actually happened. Lawyers call these events the “facts” of a case. Identifying and collecting this documentary evidence requires a lot of skill. Making sense and using it effectively in any case requires experience. So much is now recorded automatically by computerized devices that the sheer volume of material to assess can be a real challenge. The costs involved can accumulate quickly and the whole exercise can be burdensome in its demands on time. Specialists in digital evidence are necessary, something which then demands strong project management by the legal team to keep the exercise proportionate and fair.

For the reasons given above, documentary evidence can determine the outcome of a case. Litigation is conducted with both sides’ cards face up on the table. This means that all the helpful evidence will naturally be disclosed. But the civil procedure rules require adverse documents to be produced as well. The sooner these are disclosed, the better for everyone, because the likely outcome of the case can be predicated more keenly when the weak points are identified. It is a feature of adversarial litigation that cases are fought at their weakest points.

In the end, where compromise eludes the parties, the judge will decide what they accept, from the evidence, to have happened on the balance of probabilities. In other words, where there is uncertainty, a judge will decide which version of events the parties contend for was the more likely to have happened. Digital evidence will be a crucial factor in the determination. So much so, that where digital evidence is not produced when it ought to have been, a judge can decide that the absence of evidence is significant and tip the balance for or against one side.

Once the judge has made a decision on the facts of the case (i.e. what happened), the legal rules that decide the consequences of the facts come into play. In some cases the legal rules may be unclear. More often, it is how the rules are applied to the facts which gives greater difficulty. In most cases, though, the facts will usually govern the outcome of a case. Since the facts can only be established by the evidence, it is the evidence - finding it and presenting it - which is of supreme importance.

Mark has over 30 years' private practice experience of advising and representing companies, institutions and individuals in domestic and international commercial litigation, fraud and insolvency cases across multiple sectors.

Mark Surguy, Partner
+44 (0)121 616 6587