In civil litigation, especially in personal injury, the credibility of a Claimant is crucial when much turns on the Court accepting the oral evidence of the Claimant. Whether the injury cannot be measured with objective evidence or whether there is doubt about the validity of the accident, the Claimant’s evidence must be strong and reliable to ensure it is accepted, especially with scrutiny under cross-examination.
The Claimant will present evidnece as part of their claim in the form of witness statements, medical reports, medical records and other documents. A Defendant advocate’s dream case is finding the Claimant’s evidence entirely inconsistent throughout, making their ability to controvert the Claimant easier. In contrast, a Claimant presenting evidence where the narrative remains consistent throughout makes it more challenging (and more likely to lead to a settlement prior to trial).
The human condition
Human beings are faillble and the possibility of the Claimant misremembering matters is entirely possible without the overall credibility of the Claimant being compromised.
Courts often recognise that human memory is reconstructive. Memories can be distorted over time. Interaction with others can unintentionally manipulate recall of events. The stress of litigation can have an impact. In civil cases, the process of litigation can often commence months or even years after the event.
Humans may believe their memories are accurate but be unaware that they are misremembering. This can be seen in cases where controverting evidence is put to a witness, and you can see the genuine look on the witness’s face as they try to reconcile the evidence with their recall.
Even this can be problematic for witnesses: if they misremember one point, could they also misremember others? Can any of their evidence be accepted?
Medico-legal reports
Medical evidence is very important for providing a claim for personal injury, but it is also another opportunity for inconsistency to be utilised by the Defendant. I previously wrote about how reporting to doctors (whether treating doctors reported in records or medico-legal experts reported in reports) would amount to an inconsistent statement and can be used to challenge credibility.
Whilst there can be explanations for errors on part of the maker of the record or report, the Claimant may need to resort to finding a way to establish that this was an erroneous reporting (Denton Hall Legal Services v Fifield [2006] EWCA Civ 169). It is inherently more problematic for a Claimant when their own medico-legal reports (which were privileged until instructions were given to disclose these) have inconsistencies compared with medical notes which are completed by someone whose main focus is on treatment, rather than the presentation of reports for the purposes of litigation.
Witness statements
The difficulty for Claimants, when it comes to witness statements, is that, being their evidence in chief, it can be fatal if they include or omit information. What many litigators often forget is that a witness statement replaces the step of the witness going into the witness box and giving live oral evidence before cross-examination.
Advocates can see that litigators can forget this because the witness statement usually ends with “I am willing to attend Court to give evidence”, which is nonsensical because if the witness was giving live oral evidence, they would have been asked by their advocate “anything else to add?” and the witness (in Court, in the witness box) would say “I am willing to attend Court to give evidence”.
Witness statements are sometimes used to address issues with medical evidence, but this is usually done by the advocate during cross-examination.
Case example
The point is that the evidence should all tie in together. While evidence is rarely perfect, there is a significant difference between a few errors and inconsistency that threatens the credibility.
An example was a case where I acted for a Part 20 Claimant. The Part 20 Defendant’s claim was that she had sustained injury when driving her motorcyle along side traffic when the Part 20 Claimant pulled out in front of her. The Part 20 Claimant argued that following the collision, the Part 20 Defendant injured her when she tried to leave the scene of the accident.
Since my Part 20 Claimant client’s accident details were largely unrelated to the personal injury case pleaded by the Part 20 Defendant, it was up to the Claimant to establish her case. Unfortunately, the medical reports lacked consistency, and the claimed losses, like loss of earnings, were not supported by evidence or considered by the medical experts. Although the Claimant attempted to clarify everything during her oral testimony, her credibility was compromised, making it difficult for the Court to rely solely on her evidence.
Conclusion
Courts will recognise that human memory is fallible, but consistency is key to ensuring and maintaining credibility in civil cases. Small errors usually will not matter too much, but contradictions across witness statements, medical records, reports, and pleadings can be fatal. Once credibility is damaged, it’s hard to restore it fully with oral evidence. Explaining discrepancies late in the process often makes things worse and highlights the problems. Even if a Claimant genuinely believes their account, a lack of coherence in the evidence can prevent the Court from trusting their evidence.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
