Complex commercial disputes, whether they are heard in the Commercial Court or before international arbitration tribunals, regularly feature extensive witness evidence.  Without wishing to tar all witnesses with the same brush, statements are frequently argumentative, lengthy and feature, surprisingly often, thinly disguised legal argument.  One witness, for example, ‘distinctly recalled that the implied representations had been made to him, and that he promptly proceeded reasonably to rely on them, having thereby been induced to enter into the contract’.  What is more, witness statements are often drafted in impeccable English, even where the witness expresses himself or herself in a very different manner (or where he or she is not a native English speaker).  Such beautiful prose is a reflection of the reality that witness statements are drafted by lawyers.  It would be practically unheard of for counsel in a complex commercial dispute to tell the witness to go away and come back when they have written their statement.  Providing the right assistance to witnesses, however, should not be frowned upon.  One should not veer from one extreme of using a witness as an unwitting extra advocate to throwing them to the wolves - particularly in an adversarial setting.  This article looks at the approach that judges and arbitrators take to witness evidence, and suggests what the proper role of witnesses should be.

‘Do’s and don’ts’ for witnesses

Witnesses of fact should only ever testify as to relevant facts of which they have personal knowledge, and which they can recall.  While the proper role of witnesses can be described succinctly in this way, there are many more ways in which they can stumble when giving evidence.  Witnesses should always refrain from:

Not telling the truth, or presenting a selective version of the truth.  That goes for everything a witness says under oath.  There is no such thing as a ‘white lie’ when giving evidence.

• Advancing or defending their own case (or worse, arguing what they think their case is, or should be).  Their role is not that of an advocate.

• Expressing an opinion, unless they have the necessary qualifications and experience to do so (they often don’t), and the opinion actually goes to an issue in the case (it usually doesn’t).

• Speculating as to the motivations of others.

• Appearing, or being, arrogant, condescending or aloof.

• Refusing to accept when the opposing party has made a reasonable point.

• Engaging in argument or discussion with the lawyer who is cross-examining them.

• Refusing to answer questions asked of them directly, and to the point.

• Embellishing their evidence, giving speeches or identifying what they think is ‘the real issue’ that the tribunal needs to know about (it usually isn’t).

Witnesses who appear in court or before arbitral tribunals must be prepared for the tribunal of fact to assess their credibility after they have given evidence.  Here is an example of what a judge might say after a disastrous performance in the witness box (Berezovsky v Abramovich (Rev 1) [2012] EWHC 2463 (Comm)):

“I found [X] an unimpressive, and inherently unreliable, witness, who regarded truth as a transitory, flexible concept, which could be molded to suit his current purposes. At times, the evidence which he gave was deliberately dishonest; sometimes he was clearly making his evidence up as he went along in response to the perceived difficulty in answering the questions in a manner consistent with his case; at other times, I gained the impression that he was not necessarily being deliberately dishonest, but had deluded himself into believing his own version of events. On occasions he tried to avoid answering questions by making long and irrelevant speeches, or by professing to have forgotten facts which he had been happy to record in his pleadings or witness statements. He embroidered and supplemented statements in his witness statements, or directly contradicted them. He departed from his own previous oral evidence, sometimes within minutes of having given it. When the evidence presented problems, [X] simply changed his case so as to dovetail it in with the new facts, as best he could. He repeatedly sought to distance himself from statements in pleadings and in witness statements which he had signed or approved, blaming the “interpretation” of his lawyers, as if this somehow diminished his personal responsibility for accounts of the facts, which must have been derived from him and which he had verified as his own.”

And this is how you do it:

“Mr. [Y] indeed gave careful and thoughtful answers, which were focused on the specific issues about which he was being questioned. At all times, he was concerned to ensure that he understood the precise question, and the precise premise underlying the question which he was being asked. He was meticulous in making sure that, despite the difficulties of the translation process, he understood the sense of the questions which were being put to him. To a certain extent that difference, no doubt, reflected the different personalities of the two men, for which I gave every allowance possible to Mr. [X]. But it also reflected Mr. [Y]’s responsible approach to giving answers which he could honestly support. Where he had relevant knowledge, he was able to give full and detailed answers; he took care to distinguish between his own knowledge, reconstructed assumptions and speculation. He was not afraid to give answers which a less scrupulous witness would have considered unhelpful to his case.”

How do courts and tribunals assess credibility?

Having seen the result of an experienced judge’s assessment of the credibility of witnesses, we turn to how judges or arbitrators approach that exercise.  There are a number of factors in play.  The first is that some people are simply rather good at lying.  It has been said that: 

“The ability to tell a coherent, plausible and assured story, embellished with snippets of circumstantial detail and laced with occasional shots of life-like forgetfulness, is very likely to impress any tribunal of fact. But it is also the hallmark of the confidence trickster down the ages.”

(Lord Bingham, The Business of Judging (2000)).

The second factor is that when witnesses give evidence as to past events, they make use of their recollection.  Human memory is anything but infallible.  Our brains do not create an objective record of what was said and done which remains at our fingertips to be recalled.  Recollection can become warped and be influenced by subsequent events, statements made by others or by emotions.  This means that a witness may end up honestly believing something that never happened.  As Lord Bingham said:

“… the human capacity for honestly believing something which bears no relation to what actually happened is unlimited.” 

It is therefore recognised that deciding whether a witness is telling the truth is not an easy exercise.  The risk of being faced with conflicting accounts from two apparently honest witnesses means that tribunals may, in practice, prefer documentary evidence.  As Lord Goff acknowledged in Grace Shipping v Sharp & Co [1987] 1 Lloyd’s Rep 207:

“It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.”

Lord Pearce in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 identified a number of questions that judges may ask themselves when considering whether a witness is telling the truth.  Credibility is not just about the witnesses demeanour, so how they act and comport themselves when giving evidence, or whether they appear to be telling the truth as they now believe it. 

Does the witness come across as a truthful or untruthful person?

• If the witness is generally truthful, are they also being truthful in their evidence on a particular matter? 

• If the witness has been untruthful, are they nonetheless telling the truth on a particular matter? 

• If a witness has been untruthful or inconsistent, even on a relatively unimportant matter, this will colour the tribunal’s impression.  The evidence of that witness will be less likely to be accepted even if they are in fact telling the truth on the most important point in the case.  It is therefore paramount that a witness remains truthful throughout, even as to what they might perceive to be minor matters. 

• Has the witness correctly understood the relevant events on which they are giving evidence?

• Can the witness still accurately remember the events in question?  “With every day that passes the memory becomes fainter and the imagination becomes more active”.

• Has the recollection of the witness been affected and altered subsequently, whether by unconscious bias, wishful thinking or intense discussion with others?

• Is the witness emotionally affected, perhaps because they genuinely believe they have a legal right and are trying to have it enforced?

In conclusion, bearing in mind human nature, the importance of contemporaneous documentary evidence can hardly be overstated, as Lord Pearce stated:

“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. And 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 in 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.”

It is rarely the case that in a complex commercial dispute, evidence as to what someone saw or heard will be decisive.  One exception to this may be oral agreements or understandings said to have been reached.  Whatever you may have agreed orally, it is important that a documentary record of this is created at the time - quite simply because a tribunal may not believe you, even if you are telling the truth, when a dispute arises a few years later.

What role should witnesses play in complex commercial disputes?

The reliability of witness evidence is not just affected by the frailties of human recollection.  Advocates handling complex commercial disputes tend to be skilled cross-examiners.  They will do their utmost to make a witness for the opposing party appear unable to testify reliably on what they had for breakfast.  The techniques and tricks of cross-examination are such that they can catch out even honest witnesses who have a good grasp of the evidence set out in their statement.  But all of this does not mean that we should discard witness evidence.  Witnesses can assist the tribunal.  No matter how reliable contemporaneous documents may be, it is rare for the documents alone to tell the whole story or set out the full context that the tribunal should be aware of.  Someone needs to put the documents into evidence.  That does not just mean exhibiting them to a statement.  A witness of fact can provide a valuable objective and factual narrative that links the documents together. 

In complicated cases, it is preferable to have a witness set the scene for the contemporaneous documentary evidence, filling in any factual gaps, as opposed to counsel’s submissions reciting or quoting from the documents and then postulating what the author of the relevant document must have meant or believed.  If the author of the critical letters or emails appears as a witness, the tribunal will have the comfort that they can ask any questions that are not answered by the documents.  We have already mentioned that witnesses should of course refrain from going beyond setting out the facts in their statement, or engaging in legal argument.  Where such unhelpful and inappropriate evidence is prepared, that is generally not the fault of the witness, but of the lawyers who drew up the statement.  The fact that some practitioners do not know how to use the tools at their disposal properly does not, however, mean that the tools should be discarded.