By Carla Jones

Partner

When most people think of witnesses giving evidence under Oath, they picture a battle of wits with barristers decked out in wigs and gowns; perhaps more typically associated with the drama of a Criminal Court room. However, similar rules apply to witnesses in Civil cases and many people do not realise when starting a Claim for say, a breach of Contract that ultimately they may find themselves sitting in a familiar scene; giving evidence under Oath and feeling like the barrister is trying to trip them up at every turn.

Because many civil cases will turn on witness evidence, a solicitor needs to make an assessment of how credible a witness is likely to be when the time comes. That will be factored in to the tactical approach to the case and assessment of likelihood of success.

The question of credibility is one which may initially seem straight forward but is often anything but! It is not simply a case of deciding; “my client is telling the truth so there’s no problem!”, because the pressure of a court environment can make the most honest and straightforward witness stumble and second guess themselves,  which in turn could undermine their credibility in the eyes of a Judge.

Credibility, unlike honesty is subjective. The concept of credibility also involves elements of reliability of recall – how well can the witness really remember a conversation that took place 2 years ago?

We, as humans have not yet invented a fool-proof way to test honesty (don’t believe what you read about lie-detector tests!), so we rely on a Judge’s view as to someone’s credibility. Judges in the Civil Court will make findings of fact, meaning that they may well decide that Witness A is telling the truth or not, as the case may be. An imperfect system, but the best we have for now.

So, generally speaking what makes a witness seem credible?

In reality, it is very difficult to say, perhaps just how someone speaks or carries themselves or a sort of evidence giving X-factor, but there are some key points that Judges will take into account when determining credibility;

• Is there any independent evidence, in the form of documents or records that tie in or support what the witness is saying?
• How well does the witness stand up to cross examination? When challenged does the evidence change and if so how drastically?
• Does the witness seem overly emotional, angry or upset when giving evidence?
• Does the witness have any motive for misleading the Court?
• Does the witness appear to speculate or fabricate?

The above, plus many more less tangible factors are likely to lead to a Judge’s overall impression of credibility. Witnesses should think carefully when agreeing to give oral evidence in Court and parties to litigation must appreciate the inherent risks that come with witness evidence and the question of credibility.