[2025] EWHC 1691 (TCC)
In a dispute arising out of the performance of professional services and construction operations in respect of the design and construction of a care home, the judge, Martin Bowdery KC, made a number of interesting comments about the nature of witness evidence when there was discussion about the danger of treating a witness's recollection of events that happened a long time ago as firm evidence and the potential value of contemporary documents over that witness evidence.
The judge noted that reliance upon contemporaneous documentation is not without its own difficulties and that: "Historians must always challenge their sources". Contemporaneous documentation can themselves be: "self-serving; based upon an incomplete understanding of what was occurring; and drafted without the benefit of hindsight". This meant that a "dogmatic preference" for documentary evidence over witnesses' recollections of what was said and was done was "unhelpful". The main tests which the judge applied to assess the credibility of the witness evidence were:
- The consistency of the witness's evidence with what is agreed or clearly shown by other evidence to have occurred;
- The internal consistency of the witness's evidence; and
- The demeanour of the witness.
Here, the witnesses in question gave clear, concise and credible answers to the questions asked. They were not partisan or argumentative. They gave no indication of giving carefully scripted, pre-prepared answers. Where their evidence differed or was not fully supported by contemporaneous documentation, there were reasonable and credible reasons for this.
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