Evidence in Civil Disputes

There are three crucial aspects to any civil dispute – first, the evidence (facts), secondly, the relevant law when applied to those facts, and thirdly, the tactics of the case.

Of these, the most important is usually the evidence, as very few cases are won without strong evidence to support the winner’s arguments.

Getting the right evidence early is crucial, not only so you can properly assess the strength (or weakness) of your case and its likely value, but also (as a result) to try to persuade your opponent to negotiate an early and hopefully cost-effective settlement, or perhaps even to drop their claim or defence altogether.

The Civil Court Rules on evidence

The civil claims process in England is governed by a set of rules known as the Civil Procedure Rules (“CPR”). The CPR contains complex rules on evidence which are not always straightforward to follow, let alone to apply.

However, the process of obtaining evidence is much broader than just what is set out in the CPR, and the key to winning a case is very often getting all of the important evidence together as soon as you can, even before Court proceedings are started. Further information about the CPR rules on evidence can be found here.

Is a trial needed where all the evidence is in the documents?

We sometimes encounter situations where a client comes to us believing they have a completely clear cut case – often this is where there is a written contract and the client believes that the other side has clearly broken it, perhaps failing to pay or to perform.

Understandably the client may believe and expect that there is no need to go to a full trial in such a case.

However, things are usually not this straightforward. Very often there will be a dispute about the facts of a particular situation. Even where a clear breach of a contract can be shown to have happened, your opponent may claim that you did something to break the contract first. There are very few cases where the facts are so clear cut and unchallenged that the Court can decide the case without hearing the witnesses give evidence.

For those rare cases where the case will not turn on the oral evidence of the witnesses, there is a procedure known as “summary judgment” in which a party may apply to the Court to have the claim or defence dismissed without a full trial. To succeed, the applicant will need to satisfy the Court that there is no merit in the other side’s case. Such an application will only succeed where there is no significant dispute about the core facts of the case – if there is, the Court will almost always require a trial to take place, so that the witnesses can be cross-examined.

An inappropriate application for summary judgment can be risky, as if it fails you are likely to be ordered to pay the opponent’s costs of defending the application. As a result, this process should only be used where there is likely to be a good chance of success.

Statements of Case – impact on evidential issues

When starting a claim, a Claimant must set out what it believes to be the relevant facts of the dispute in a document known as the “Particulars of Claim”. This will be served on the Defendant at the same time as, or very shortly after, the Claim Form. A Defendant who wishes to dispute the claim must then serve a Defence. Together the Particulars of Claim and Defence are known as the “Statements of Case”.

A Defendant has three ways to respond to the matters set out in the Particulars of Claim:

• First, a Defendant may choose to admit certain facts. Once something is admitted it is deemed to be accepted as fact, so an admission should only be made in respect of uncontested facts. It is not normally open for a party to withdraw an admission once made.
• Secondly, a Defendant may choose to deny certain facts. This means that those facts are in dispute, and both sides will have to present evidence at trial to set out their cases in relation to those facts.
• Finally, a Defendant may “not admit” certain facts. This does not necessarily mean that the Defendant disputes those matters, but requires the Claimant to prove them.

Once the Particulars and Defence have been exchanged the parties will understand what issues are in dispute and need to be proved, and which facts are now common ground.

Documentary evidence – disclosure

Disclosure of documents is often a crucial part of a civil dispute. Disclosure occurs at a relatively early stage in the claim, once the statements of case have been exchanged.

The parties are required to disclose all relevant documents in their possession or control, and not just those documents that help their case. The duty of disclosure continues throughout the case (meaning that additional documents which may come to light later must also be disclosed), and a party who believes that the other side has failed to disclose all necessary documents may apply to the Court for an order requiring them to do so.

The evidence which must be produced on disclosure extends to electronic documents, including emails and electronic files held on computers and other media such as mobile devices. Each party is required to sign a disclosure statement to the Court confirming that they have complied fully with their duties of disclosure.

Disclosure is a key stage in any Court proceedings, as it is usually the first time that each party will have seen the full extent of the other party’s documents – as a result, many cases settle shortly after disclosure is completed.

The rules relating to disclosure are complex, and can be found at Part 31 of the CPR.

Is expert evidence required?

The role of evidence is generally to help the Court establish the facts of a dispute, but sometimes the only way a Court can decide an issue is with the benefit of independent expert evidence.

An expert is usually needed where the Court will require specialist advice on a technical area, such as in a building or construction dispute, or a case involving complex accounting issues. The Court’s permission if always needed before expert evidence can be used.

In many cases the Court will order that a single, joint expert be appointed by the parties to report on a specific issue. In that case both sides have to agree a suitable expert, will prepare a joint instruction, and will usually initially share the expert’s fees. In more complicated cases it may be necessary for each party to appoint their own expert.

The role of an expert in Court proceedings is to assist the Court, not simply to support the party instructing them. They need to be suitably qualified and to be objective. There are specific rules about experts in the CPR, and the format and content of their reports has to follow these rules.

Although experts can be very useful in resolving some cases they should only be used where necessary, as the appointment of experts will inevitably add to the length and expense of litigation.

Can a witness be forced to give evidence in a civil claim?

The Court will also make an order that both sides must exchange witness statements by a specified date. These statements are important, as they will form the basis of the factual evidence that each witness will give. A witness who has provided a statement will be expected to attend the trial to be cross-examined on the contents of their statement.

A problem that can sometimes arise is where you know that there are witnesses that can help your claim, but you are unsure whether they will be willing to give a statement or come to Court.

In general, it is far better only to rely on those witnesses who have voluntarily provided a statement and who are prepared to attend Court. Although you can compel a prospective witness to attend Court by serving them with a summons, this can often backfire as (i) if they have not already given a statement you will have no idea of what they may say (which may turn out to be very unhelpful to your case), and (ii) a witness who is forced to attend Court against their will is unlikely to be particularly helpful.

In order to avoid this, it is advisable to identify at an early stage which witnesses you wish to call, to contact them promptly to see if they are prepared to help, and to take statements from them quickly.

If a witness has given a statement but then refuses to come to court, the statement may still be admitted by the Court, but the significance given to it will obviously be reduced or discounted altogether because the witness cannot be cross-examined on it.

Admissibility of evidence

This can sometimes be a complex area. Evidence which is potentially improperly obtained may or may not be admissible. If there is a dispute as to whether any evidence is admissible, the Judge will decide. Even if it is admissible, it may come with consequences such as:-

• The court not giving the evidence the same importance (weight) as it otherwise might;
• A costs order against the party seeking to rely on the evidence; and/or
• Possible civil and/or criminal law implications outside of the proceedings in question based on any breach of privacy or data protection.

There are fine dividing lines between evidence which has been lawfully or unlawfully obtained. Video surveillance in public places may be unproblematic, whereas accessing someone’s personal computer or phone hacking would be illegal.

Don’t forget evidence about loss!

Last, but certainly not least, it’s vital to remember that most civil claims are fundamentally about money. Having a realistic assessment from an early stage of what your claim may be worth is essential, given the risk and cost of litigation. It is also crucial for the purpose of any negotiations with the other side.

In the same way that a Claimant must prove its case on liability, it must also prove the extent of its loss.

A court will not just accept the Claimant’s about this – a Claimant will be expected to produce detailed evidence of the losses which it is seeking to recover, which are of course capable of being challenged. Similarly, if you defending a claim you should be prepared not only to challenge the claimant’s evidence on the facts, but also to put forward any evidence of your own which might contradict the Claimant’s evidence of loss. A Claimant is also under a general duty to try to minimise its losses wherever possible, so a Defendant should always look at what steps (if any) the Claimant has taken about this.

Summary

Most cases are won or lost based on the strength or weakness of the parties’ evidence, so it is vital to ensure that as much relevant evidence (both documentary and witness) as possible is gathered at an early stage (ideally before proceedings are even issued).

Contact our commercial litigation experts today

For more information on pleadings or resolving a commercial or business dispute issue, please contact our experienced dispute resolution lawyers on 01895 207954 or email  commercialdisputes@ibblaw.co.uk.