A recent post on the on the Lexis Nexis Dispute Resolution Blog discusses the findings in the case of Excelerate Technology Ltd -v- Cumberbatch  EWHC B1 Mercantile on how to assess to the credibility of witnesses.
HH Simon Brown QC in the Cumberbatch case set out the factors that judges use to assess the credibility of witnesses in factual disputes and reviewed the guidance given to judges in relation to assessing credibility.
Citing Lord Pearce in the House of Lords judgment in Onassis v Vergottis  2 Lloyds Rep 403, Lord Goff in Armagas Ltd v Mundogas SA (The Ocean Frost)  1 Lloyd’s Rep. 1 and Arden LJ in Wetton (as Liquidator of Mumtaz Properties) v Ahmed and others  EWCA Civ 61 the judge went on to make the following observations (set out in more detail in the Lexis Nexis blog):
- He was unimpressed by a witness who continually repeated questions and asked (unnecessarily) to be shown documents – this gave the impression that the witness was trying to buy time and led the judge to describe him as “erratic … because he was deliberately obfuscating in his evidence knowing he had no valid answers to the forensic details being put to him …” (paragraph 17).
- The judge made a number of points about inconsistencies in accounts given in court documents, witness statements and oral evidence and about unsubstantiated evidence. The best barristers (and solicitors) will have picked up on these problems prior to the case reaching trial, and will have sought to address or mitigate the effects of these.
- In relation to one witness, and providing a useful summary of how not to give evidence under cross-examination, the judge said “She was a most unimpressive witness. She was belligerent and argumentative in the witness box and was unable to give any satisfactory explanation as to why Bence was secretly trying to procure an ‘independent audit’ that was biased against the Claimant upon a government contract renewal. Indeed, she was even unable to recognise the obvious that it was. She displayed a great hostility to the Claimant even to the extent of diminishing its patent capabilities such as being able to provide the necessary bandwidth for CFS. She disputed that the Claimant brought the CFS contract to Bence but the contemporaneous documentation made it clear that it did. She was not prepared to accept that the Claimant was the market leader in the field of supplying satellite facility to ERVs although that is not in dispute between the parties who would be expected to know.” (Paragraph 47).
- In contrast, and giving all witnesses something to aim for as they prepare for cross-examination, “the Claimant’s witnesses presented themselves as straightforward and open in all their dealings. The key witness, Beth Evans, was unshaken in her evidence and displayed a complete forensic command of all the material she has had unearthed and pieced together. She is a very impressive executive and witness.” (Paragraph 18).
The latter point emphasising the importance of appearances of competency both at the day job and in giving evidence.