In factual disputes, the key evidence on which a case can succeed or fail may be the given by the witnesses. Their credibility is key, but what makes them credible? (Sorry Benedict fans, whilst a Sherlock like approach may assist with dealing with cross examination, this particular Cumberbatch has nothing to do with Sherlock.)
The way in which a witness will give evidence and the way in which they deal with the stress of cross examination will vary from witness to witness. However, there is much that can be done throughout the litigation process to make the cross examination process easier for the witness and for it to really highlight the basis on which the case is being forward.
Judge Simon Brown QC in Excelerate Technology v Cumberbatch and Red Foot Lexis Citation 6 sets out authorities you need to be aware of when thinking about witness credibility and also highlights how those factors play out in practice.
Examples of the factors considered were:
- The witnesses continually repeating the question on cross examination to buy themselves time to think about an answer (para 17). Compare this to a witness asking for the question to be repeated by counsel to enable them to slow down the cross examination to enable them to collect themselves.
- Inconsistency between the various court documents. For example, in relation to the creation of a spreadsheet: ‘Mr Cumberbatch stated in his witness statement prepared for a summary judgment application that he did not know why he asked for this information. In his amended Defence, it was contended that he wanted it so that he could see how much profit he had made so as to assist him and his lawyers in his redundancy settlement negotiations. . In his oral evidence, he advanced another inconsistent, version, namely, that he wanted to be able to show that there was not a genuine redundancy situation.’ (para 22). Inconsistencies such as this should be picked up by the solicitor during the litigation process.
- Large numbers of inconsistent unsubstantiated explanations on issues. The court held: ‘In my judgment, each of these contradictory explanations, typical of both Mr Cumberbatch and Mr Osmond- are made up to suit as at the time when confronted and are untrue.’ (para 25). Contemporaneous evidence is key. Seek to substantiate all factual recollections with evidence
- Inconsistency between court documents and cross examination evidence: ‘The original position set out in the Defence and witness statements is that he was ‘just testing the market’; with his fledgling company. In cross examination he was asked what he would have done if he had received a positive response. He was pressed repeatedly and prevaricated saying he would have had to think about it. That is inconsistent with the earlier explanation which could only mean that he would not have taken on the contract at all.’ (para 30) ). Inconsistencies such as this should be picked up by the solicitor during the litigation process.
- Failure to provide evidence to explain how they came to have certain information drew an adverse inference from the court that this was because to do so ‘they would have to confess’ where they had obtained ‘such self serving falsehood’. (para 46). Practitioners should seek to deal with such issues rather than leave the witness to come under fire on cross examination. Check that explanations can be provided as to where key information was obtained.
- Unimpressive witness evidence was given: 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.’ (para 47). Witnesses tend to be argumentative when challenged. Laying the groundwork beforehand leaves witnesses in a less vulnerable position on the witness stand.
- Submissions that there was no evidence on issues when a forensic piecing together of evidence showed that there was (para 52). Practitioners need to do the ground work in piecing together the evidence.
- Failure to provide information which clearly was disclosable: ‘…there has been no disclosure of quotes / estimates / invoices to show how the sub-contract price was calculated. Someone had to work out how many man hours would be required to do the fitting and perform the ongoing service requirements. ‘ (para 71). Disclosure can be an uphill struggle with some clients but the absence of key information will adversely affect the case and will provide fodder on cross examination.
The key point to take away from this judgment is the need for practitioners to ensure that a seamless approach to the evidence is taken throughout the proceedings and that any inconsistencies are uncovered and dealt with.
Inconsistencies may arise between disclosure and the pleadings, witness evidence and disclosure, witness evidence and the witness evidence from the other side. Dealing with inconsistencies at an early stage, checking that evidence is being adduced which clearly should be available and ensuring that the witness is aware of all the relevant contemporaneous documentation will make that witness’s experience in cross examination that bit more bearable and will lessen the stress of worrying about them.
Judge Simon Brown QC decision is a must read decision for those working with witnesses but if in any doubt about what you are aiming for read his comment at para 18:
By contrast, 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.’