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Watch your witnesses

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04/03/2015

At the end of last year Gordon Ramsay sought a declaration that he was not bound by the guarantee in a lease [1]. Gordon had not signed the guarantee and the issue was whether he had authorised the signature by his father-in-law. The father-in-law, arguably a key witness, was not called to give evidence during the trial. The following principles were reiterated:

  • when a witness is absent or silent and material evidence is missing a court may, normally, draw adverse inferences;
  • the inferences drawn can strengthen the evidence of the opposing party or weaken the evidence of the party who fails to adduce the evidence;
  • there must be a “case to answer” before a court can draw inferences;
  • if there is a good explanation for the absence or silence of a witness, then no adverse inference can be drawn;
  • if there is a credible explanation, even one that is not wholly satisfactory, the potential detrimental effect of the absence of a witness may be reduced or nullified.

The judge found that the father-in-law did have authority to commit Gordon to a guarantee, but this finding was based on Gordon’s own evidence.

In another case turning on witness issues, Rihanna brought an action against Top Shop to prevent the sale of T-shirts with her image on them on the grounds that a substantial number of people would be deceived into thinking that this was an authorised product and would buy it on that basis. Although Top Shop’s case failed overall, the strongest ground founding its appeal related to the weakness of the witness evidence and, in particular, the first instance judge appearing to take note of opinion evidence contained in witness statements [2].

The case of Excelerate Technology v Cumberbatch [3], meanwhile, provides a neat, practical synopsis of the factors a court will consider when determining the credibility of a witness.

The following amount to poor witness evidence:

  • witnesses continually repeating questions on cross examination to buy themselves time to think;
  • inconsistency between various documents and between documents and cross-examination evidence;
  • large numbers of inconsistent, unsubstantiated explanations on issues;
  • lack of evidence to explain how witnesses came to have certain information;
  • witnesses being belligerent, argumentative and showing hostility. This can result in adverse inferences; and
  • the failure to provide information which is clearly disclosable.

The following amount to impressive witness evidence:

  • witnesses presenting themselves as straightforward and open in all their dealings;
  • witnesses being unshaken in their evidence; and
  • witnesses displaying complete command of all their material.

The cost of witness preparation or familiarisation will rarely, if ever, be recoverable on a costs budget and extreme care must be taken in preparing witnesses for trial so that the evidence is not contaminated or undermined by the process. However, research has shown that prepared witnesses are significantly more likely to provide correct responses to cross-examination questions and not to become confused or unduly influenced when under the pressure of cross-examination. Careful consideration of witness preparation must therefore be worthwhile.

Witnesses play such a crucial role in any case that the importance of understanding all the rules of witness evidence, and then getting it right on the day, cannot be overstated.

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[1] Gordon Ramsay v Gary Love [2015] EWHC 65 (Ch)
[2] Robyn Rihanna Fenty v Arcadia Group Brands Limited [2015] EWCA Civ 3
[3] Excelerate Technology Ltd v Cumberbatch [2015] EWHC B1 (Mercantile)

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