Dan Neidle's reporting this week on the Property118 tax tribunal hearing contains a detail that should make every litigator sit up. Witnesses under cross-examination admitted that their statements had been drafted from a common template, "agreed with" a barrister. One witness accepted that all of Property118's witnesses had used "predominantly the draft statement" because they were "guided" that was the right way to present evidence.
The consequences for those witnesses' credibility are predictable. But the episode raises a broader question that employment practitioners grapple with daily: what actually determines the weight a tribunal gives to evidence, and how has the law's approach to credibility assessment changed?
The Property118 Problem: Manufactured Evidence
The Bar's guidance on witness statements is clear. Counsel are typically involved in settling statements, but the courts have emphasised that a witness statement must, so far as possible, be in the witness's own words. When multiple witnesses produce statements with "identical linguistic formulations", the inference is obvious: the evidence has been manufactured by the lawyers, not given by the witnesses. That inference is devastating.
Employment tribunals are no strangers to this pattern. Respondents in discrimination claims occasionally produce suspiciously similar witness evidence from multiple managers — each recalling events in identical language, each arriving independently at identical justifications. Good cross-examination exposes the joins.
Volume vs Quality
The Property118 hearing also illustrates a common misconception: that more witnesses means a stronger case. It does not. As the IDS practitioner text puts it, simply because five witnesses are called to give evidence on the same point does not necessarily enhance a party's case. Quality, not quantity, is what matters when assessing weight.
Five witnesses reading from the same script are less persuasive than one witness giving authentic, detailed, internally consistent testimony. The tribunal is assessing the reliability of the evidence, not counting heads.
The Decline of Demeanour
For decades, litigators told clients to "look the judge in the eye" and speak clearly. Demeanour was treated as a primary indicator of truthfulness. That orthodoxy has collapsed.
The turning point is Leggatt LJ's judgment in R (on the application of SS) (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1391, which deserves to be required reading for every employment lawyer. His observations are worth setting out:
"It has increasingly been recognised that it is usually unreliable and often dangerous to draw a conclusion from a witness's demeanour as to the likelihood that the witness is telling the truth… To attach any significant weight to such impressions in assessing credibility risks making judgments which at best have no rational basis and at worst reflect conscious or unconscious biases and prejudices… Rather than attempting to assess whether testimony is truthful from the manner in which it is given, the only objective and reliable approach is to focus on the content of the testimony and to consider whether it is consistent with other evidence and with known or probable facts."
This is not merely an immigration law point. It has direct application in employment tribunals, where witnesses are frequently nervous, non-native English speakers, or neurodiverse — all characteristics that can distort superficial demeanour assessment. The shift is towards analytical assessment of what was said, not impressionistic assessment of how it was said.
Credibility vs Reliability: A Distinction That Matters
Even where a witness is honest, their evidence may not be reliable. As the Scottish EAT held in Netintelligence Ltd v McNaught (EATS 0057/08), a witness may be credible in the sense that the tribunal is satisfied they are honest and doing their best to tell the truth, but their evidence may still be unreliable — because of inconsistencies, lack of clarity, or conflict with the wider evidence.
This distinction matters tactically. A tribunal rejecting evidence is not necessarily calling the witness a liar. It may simply be finding that honest recollection is an imperfect guide to what actually happened. Cross-examination that exposes unreliability — through gentle testing of detail and chronology — can be more effective than aggressive challenges to honesty.
The Recollection vs Records Trap
Respondents frequently argue that their contemporaneous documents must be preferred over a claimant's oral testimony. The EAT's decision in Matondo v Kingsland Nursery Ltd [2024] EAT 123 is a corrective. There is no rule of law that contemporaneous records automatically trump recollection. The tribunal must appraise the reliability of all sources — including the record-keeping system itself. Who compiled the records? How? Were there reasons to doubt their accuracy?
This is particularly relevant in wages claims where the employer controls the payroll records and the claimant's only evidence is their recollection of hours worked. Matondo confirms the tribunal must weigh both, not assume the spreadsheet wins.
Remote Hearings: No Disadvantage
The post-pandemic shift to remote hearings raised concerns about credibility assessment. Lieven J addressed this directly in A Local Authority v A Mother [2020] EWHC 1086 (Fam): the ability to observe demeanour in the courtroom is not a reliable way to judge credibility, and a video link may actually enable more truthful evidence because witnesses feel less defensive. Given that demeanour is discredited as a credibility tool anyway, remote hearings may create no real disadvantage.
Practical Takeaways
- Draft witness statements properly. The statement must be in the witness's own words. A barrister's role is to organise and clarify, not to author. The Property118 hearing is a cautionary tale.
- Don't stack witnesses. Three witnesses saying the same thing in different words is more persuasive than five witnesses saying the same thing in the same words. Identify who adds a genuinely distinct perspective.
- Prepare for content-based scrutiny. Tribunals are increasingly focused on internal consistency, plausibility, and fit with the documentary record — not on how nervous the witness looked. Prepare witnesses to give detailed, coherent accounts, not performances.
- Challenge records, not just recollections. Matondo opens the door to challenging the respondent's records themselves. Ask who compiled them, when, and whether the system was reliable.
- Use collateral credibility. If a witness is caught out on a peripheral point, London Clubs Management Ltd v Rooney (EATS 0019/11) confirms the tribunal can use that finding to discount their evidence on central issues.
The cases discussed — particularly SS (Sri Lanka) on demeanour and Matondo on records vs recollection — represent a significant shift in how tribunals approach fact-finding. Practitioners who still advise clients that "it's all about how you come across" are behind the curve.