Tribunals assess evidence by content, consistency and plausibility, not demeanour (SS (Sri Lanka)). Credibility (honesty) is distinct from reliability (Netintelligence). No corroboration is required (Peart), and contemporaneous records do not automatically trump recollection (Matondo). On the fallibility of memory itself, Gestmin is the standard reference and Kogan v Martin the limit on it: it lays down no general principle, it was addressed to documented commercial cases, and a tribunal that disbelieves sworn evidence must say why.
Evidence; admissibility of prior findings. The Court of Appeal established the rule that findings of fact or decisions of one court or tribunal are not admissible as evidence of those facts in subsequent proceedings before a different court. Reaffirmed by the Supreme Court in Evans v Barclays Bank plc [2025] UKSC 48.
3 All ER 970 - Fraud; standard of proof; the standard for proving fraud in civil cases is the balance of probabilities (but evidence must be strong).
Evidence; witness credibility; collateral matters; perversity; reason for dismissal; redundancy. A fact-finder may in principle have regard to a witness's credibility or reliability on a collateral matter when deciding whether to accept that witness's evidence on a central issue, and it is not, in principle, an error of law to do so. What the case decides is that the principle did not save this tribunal.
Evidence; the unreliability of memory. Under the heading 'Evidence based on recollection' at [15]-[22], Leggatt J held that the best approach in the trial of a commercial case is to place little if any reliance on witnesses' recollections of what was said in meetings and conversations, and to base findings on inferences from the documentary evidence and known or probable facts; the value of oral testimony lies in the chance to test the documentary record and gauge a witness's motivations rather than in what they recall. Neither the vividness of a recollection nor the confidence of the witness is a guide to its accuracy [16]. Memories are fluid and are rewritten each time they are retrieved, including so-called flashbulb memories [17], and memory of past beliefs is especially unreliable because those beliefs are revised to fit present ones [18]. Litigation itself introduces bias, expressly including where a witness 'has a tie of loyalty (such as an employment relationship) to a party' [19], and the process of preparing and re-reading a witness statement supplants the original memory [20]. Asking a witness in cross-examination whether their evidence is recollection or reconstruction is 'misguided in at least two ways', because all remembering of distant events is reconstructive and the process is unconscious [21].
Evidence; admissibility; the Hollington v Hewthorn rule. Findings of fact made by another court or tribunal are inadmissible opinion in later proceedings — the decision at trial is for the judge appointed to hear it. (Expert analysis within an investigative report may itself be admissible.)
Evidence; demeanour and credibility. Leggatt LJ held that it is usually unreliable and often dangerous to draw conclusions from a witness's demeanour as to the likelihood they are telling the truth. The only objective and reliable approach is to focus on the content of testimony and consider whether it is consistent with other evidence and known or probable facts.
Evidence; the limits of Gestmin. The Court of Appeal held at [88]-[91] that Gestmin is not to be taken as laying down any general principle for the assessment of evidence, and that reading it as an admonition against placing any reliance at all on witness recollection was a serious error. Awareness of the fallibility of memory does not relieve a judge of the task of making findings of fact on all of the evidence, and heuristics or mental short cuts are no substitute for that function; where a party's sworn evidence is disbelieved the court must say why and cannot simply ignore it [88]. Leggatt J's observations were expressly addressed to commercial cases; where the parties are individuals in a close relationship it is inherently improbable that all of their interactions will be recorded in documents, and an issue of that kind will not be resolved by documents alone [89]. A judge who adopts the documents-first approach may not apply it selectively so as to pass over documents that assist the other side [90]-[91]. Reported at [2020] ECDR 3 under the running head Martin v Kogan.
Evidence; remote hearings and credibility. The ability to observe a witness's demeanour in the courtroom is not a reliable way to judge credibility. A video link may enable some witnesses to give more truthful and complete evidence. It is not possible to say in general whether it is easier to tell whether a witness is telling the truth in court rather than remotely.
Evidence; weight of oral testimony vs documentary records. There is no rule of law that witness evidence based on recollection must be corroborated by primary contemporary independent records, nor that a tribunal is bound to accept contemporaneous records as necessarily trumping evidence based on recollection. The tribunal must appraise the reliability and credibility of all different sources of evidence.
Evidence; admissibility; Hollington v Hewthorn. The Supreme Court reaffirmed for English law the rule that findings of fact made in one set of proceedings are inadmissible as evidence in subsequent proceedings. The inroads made by the Civil Evidence Act 1968, ss.11-13, are limited to reliance on criminal convictions in civil proceedings and do not extend to admitting civil findings in subsequent civil cases.
Evidence; credibility vs reliability. A witness may be credible in the sense that the fact-finder is satisfied they are honest and doing their best to tell the truth, but their evidence may not be reliable. Reliability involves looking at how the witness gave evidence, conflicts in their evidence, its clarity or lack thereof, and the whole evidence in the case.
Evidence; weight and credibility. There is no requirement for witness evidence to be corroborated; it is simply for the tribunal to assess, as a matter of common sense and judgement, the extent to which it finds the evidence of a witness satisfactory and reliable.
Evidence; weight of forged documents. No error of law in a tribunal's decision that even though the respondent had forged the claimant's signature on documents relevant to a race discrimination claim, the documents were not crucial evidence and the respondent's case was not seriously undermined.
Evidence; credibility and weight. Where a witness was found to have lied about being present on the day of an alleged sexual harassment incident, the tribunal was entitled to take this into account as seriously undermining his credibility in relation to his response to the claims in general.