Modern civil litigation is very document-heavy, with trial bundles frequently containing large numbers of documents, ranging from medical records to emails and photographs. Litigators can fall into the trap of assuming that if a document makes its way into a trial bundle, its contents will prove the case. That can sometimes be the case, but on many occasions it will not.
I recently conducted a fast-track possession claim (in which a reserved judgment was recently handed down) that required the Claimant landlord to prove an intention to undertake substantial redevelopment. The landlord relied upon an impressive collection of documents; planning permission, architects’ plans, contractor quotations and evidence of funding. Yet there was one glaring omission. The landlord did not provide a witness statement and did not give evidence. The Court was not satisfied that the burden of proving genuine intention had been discharged. For this reason (and a particular legal argument, for which I thank my chamber colleague, Vincent Mulcock, who provided it to me) the possession claim was dismissed.
The case illustrates a simple but fundamental proposition that documents rarely speak for themselves. Someone usually has to speak for them.
For ease, I will use my possession claim as an example to illustrate the point.
Pleadings do not amount to evidence
Whilst it is probably common sense, it is important to remind ourselves that the statement of case defines the issues, they do not prove the issues themselves. Facts pleaded remain allegation unless admitted or found by the Court to be established by evidence.
It can be understood why there would be that presumption. After all, the statement of case must be endorsed by a statement of truth. Practice Direction 16 includes particular information that must be included in particular cases, such as personal injury or credit hire.
In the Particulars of Claim for the possession claim, the following was pleaded:-
“These documents evidence that the Claimant has a genuine intention to carry out the works at the Property along with evidence that the works will be able to commence shortly after possession is obtained in granted by the Court.”
The pleading is not, of itself, evidence of intention. Reliance on the same in submissions cannot. However, it asserts that the documents evidence the genuine intention.
Documents proving some things, but not others
There are going to be some occasions where a document will prove something and does not require witness evidence.
Pratice Direction 32 para 27.2 states that:-
All documents contained in bundles which have been agreed for use at a hearing shall be admissible at that hearing as evidence of their contents, unless –
(1) the court orders otherwise; or
(2) a party gives written notice of objection to the admissibility of particular documents.
So if a document goes into a trial bundle, then it is deemed to be accepted as admissible evidence. However, that still requires the Court to include as much evidence as it sees fit, especially since documents are, for all intents and purposes, hearsay.
So at the possession trial, I could not submit that the documents were not admissible. They were in the bundle (as they were annexed to the Particulars of Claim. However, I argued they did not get the Claimant over the evidential threshold. I submitted that, as per Edwards v Thompson [1990] 2 EGLR 71, there were both objective and subjective tests. The objective test could be met with the documentation, i.e., whether it was feasible that the Claimant could undertake the work. He seemed to have the funds; he had the relevant permission to do the work, etc. He has acquired estimates. I contended that what he could not do was prove that he had the necessary intention with these documents. Instead, he needed to give evidence himself.
The documents could not demonstrate motive, intention, understanding, knowledge, belief, or state of mind. These aspects typically need evidence from an individual. This distinction is especially critical when the legal test involves a subjective element. If the Claimant’s intention is in question, the most straightforward and direct evidence usually comes from that party. As the Judge recognised in the Judgment, the Defendant contested the Claimant’s intention in her Defence, even before she instructed legal representation.
The problem for the Claimant was that it was they who proposed that both parties did not file witness statements and had no oral evidence at trial. This followed the resolution of a separate issue in the Claimant’s favour, which led them to believe oral evidence was unnecessary.
With no actual evidence from the Claimant, the Court found difficulty in finding intention.
The Wisniewski Problem
The absence of a key witness can do more than leave an evidential gap. evidential gap; it may permit the Court ot draw an adverse inference. I relied on the authority of Wisniewski v Central Manchester Health Authority [1998] PIQR 324. The Court of Appeal confirmed that adverse inferences may be drawn where a witness capable of giving material evidence is not called. In particular:-
- a Court may draw adverse inferences from the absence of a material witness;
- the inference may weaken the defaulting party’s case;
- there must be evidence capable of supporting the issue in the first place, and;
- there must be no satisfactory explanation for the witness’s absence.
In Wisniewski, the key witness was Dr Renninson, who was not in attendance (having gone to Australia after obtaining an appointment at a cancer centre there). Therefore, the Court drew adverse inferences in their absence. The Court of Appeal endorsed the approach. It was not about punishing the Defendant hospital, but about acknowledging that if the one person best placed to explain important facts does not give evidence, then the Court can legitimately question why that is. Further negative inferences were made as Dr Renninson could have attended remotely.
In the possession case, the Claimant’s intention was entirely absent. Ironically, he too was in Australia and was given permission to attend remotely. However, when the Claimant successfully established that the interest in the property was obtained from his brother without consideration whilst the Defendant was a tenant, the Claimant must have believed that oral evidence was not required. He did not even file a statement. He opted not to.
The Court simply could not infer from the documents, the Claimant’s intentions.
Why witness statements still matter?
A witness statement does more than exhibit documents (which is, of course, important for demonstrating the admissibility of the document. For example, being able to explain the genesis of the document or how it came into existence). There will be times when it is vital to add context to such documents to the extent that the document in turn bolsters or corroborates the evidence.
A witness statement provides the narrative that connects the documentary evidence, explains why particular decisions were made, and records the witness’s state of mind, what they intended, understood, or believed at the relevant time. It also provides accountability, as the witness signs a statement of truth and subjects themselves to cross-examination. The evidential value of witness oral evidence often lies not merely in what is said, but in the witness’s willingness to stand behind their account under oath and to have it tested in cross-examination.
In previous times, credit hire ‘basic hire rates’ evidence, it consisted of actual research elements that required the author to explain how the evidence was obtained. For example, this included calling particular car hire companies and inquiring about specific vehicles and availability. In these circumstances, witnesses would be required to attend court to be cross-examined. Now, with most evidence being captured in real time by software, it is usually the case that any witness statement simply adduces it to make it admissible but does not require the witness to attend.
Tips and tricks
Do not assume documents are enough
Always ask what fact a document actually proves. Documents may establish that something was said or done, but they do not always explain why it happened or what the parties understood at the time.
Identify subjective issues early
Where intention, belief, knowledge, understanding, or motive is in issue, documentary evidence alone is rarely sufficient. Witness evidence will often be essential.
Who are the key witnesses?
Identify the person best placed to answer the central factual question. If such a witness exists, think very carefully before choosing not to call them.
Use documents through witnesses
Documents are often most persuasive when explained by the person who created, received, or acted upon them. Context frequently determines weight.
Concluding remarks
Never underestimate the purpose of a witness statement when it comes to adducing and evidencing documentary evidence. When I undertook the CILEX Lower Rights of Audience course, the process of evidencing documents and other exhibits was best explained using a criminal law example. A knife is first adduced by the witness who discovered it. The next witness gives evidence as to how the knife was secured and transferred to the forensic laboratory. The forensic expert then gives evidence of their examination and findings. Piece by piece, the evidential chain is established until the court can properly conclude that the knife is connected to the alleged offender.
The same principle applies in civil litigation. Simply placing documents into a trial bundle is insufficient. Whilst their inclusion in the bundle makes them admissible, it does not follow that the court will attach the weight to them that the party intends. Documentary evidence does not speak for itself. A witness statement should explain what the document is, how the witness came to possess or create it, why it is relevant, and, where appropriate, what it demonstrates in the context of the issues before the court. Without that evidential foundation, a document may amount to little more than an unexplained piece of paper.
This is particularly important where a party seeks to rely upon correspondence, emails, invoices, contracts, photographs, or records. Unless a witness identifies those documents and explains their provenance and significance, the court may give them little or no evidential weight. The bundle is merely the repository of the evidence; the witness statement is what breathes life into the documents it contains. It is the mechanism by which documentary evidence is authenticated, contextualised and linked to the factual issues the court must determine.
Information
Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
