Litigation in the technology and construction court
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CHAPTER 3
Evidence
Introduction
3.1 This chapter deals with general guidance as to the deployment of evidence in TCC litigation. It should be read in conjunction with the more specific advice given in the chapters dedicated to a certain type of claim, such as defects or delay, and, of course, to the requirements of the CPR and the TCC Guide. 3.2 The principle which underlies all this advice is that all evidence in the case should be deployed in the way which makes the task of understanding the issues and deciding the case as easy as possible for the Judge. This is because evidence which is readily comprehensible and sensibly structured is more persuasive. 3.3 Advice on dealing with disclosure is outside the scope of this book. Practitioners should refer to the White Book and to the outcome of the pilot scheme trialling (at the time of writing) the draft Practice Direction for disclosure for the Business and Property Courts.1Witness statements
Number of witnesses
3.4 The first issue to consider in relation to witnesses is how many are needed, and who should you choose from the client’s team. 3.5 The first task is always to analyse what the issues in the case are and, in relation to each issue, whether it is a matter of factual dispute or opinion evidence. It is necessary to go through the pleadings carefully to identify the factual disputes which will require a factual witness to speak to them. In principle, factual evidence from a witness should not be adduced in relation to issues which turn solely on expert evidence.2 Ideally, the person at the client who has the most direct knowledge of the particular issue will be the person who gives evidence on it. 3.6 Often, several individuals at the client have personal knowledge both generally as to what happened on the project and as to specific issues. Whether only one person gives evidence on a particular issue or more than one will depend on the following factors:- What is the nature of the issue? If it is a case of telling an overall story of the project, it is likely that one person (ideally in a project management role in which it would have been their job to have an overall view) should give that evidence. If the issue relates to a disputed oral agreement at a meeting attended by more
than one individual, it may be important for everyone who was there to give their evidence as to what happened.Page 26
- The number of persons giving evidence about an issue will also be affected by the importance of the issue. It is frequently the case that there are multitudes of minor disagreements as to what happened; it is rare that these are determinative of the case. The focus of the evidence should be directed at issues which will be key to the Judge’s decision.
- The Judge will not decide the case on the basis that one side had four witnesses giving evidence on a particular issue and the other side had two. More is not necessarily better; clarity and consistency is more persuasive than mere repetition. Further, multiple witnesses giving the same evidence can give the impression of a party line.
- If more than one witness gives evidence on the same issue, there is an advantage in that the issue is not dependent on the evidence of one person who might be seriously undermined in cross-examination. Further witnesses may provide a second chance. There is also a disadvantage in that the more witnesses called, the greater the chance of duplication (tiresome and unpersuasive for the Judge) and inconsistencies (damaging for the credibility of all relevant witnesses and damaging to the claim), particularly during cross-examination.
‘Expert’ factual witnesses
3.8 In some cases, the distinction between a factual and expert issue will not be wholly clear. In TCC litigation, it is often the case that a technical issue is in dispute, about which members of the project team took decisions during the course of the works, based on their own expertise as engineer or other qualification. In a professional negligence case, the professional in question will have evidence to give as to why and on what basis he or she took the decisions they did at the time. 3.9 The Court of Appeal held in Lusty v Finsbury Securites Ltd 3 that an architect suing for fees could give opinion evidence as to the value of his work. In DN v LB Greenwich 4, the Court of Appeal considered the position of the defendant professional in a professional negligence action giving evidence as to his own actions. Brooke LJ said:25. It very often happens in professional negligence cases that a defendant will give evidence to a judge which constitutes the reason why he considers that his conduct did not fall below the standard of care reasonably to be expected of him. He may do this by reference to the professional literature that was reasonably available to him as a busy practitioner or be reference to reasonable limits of his professional experience; or he may seek to rebut, as one professional man against another, the criticisms made of him by the claimant’s expert(s). Such evidence is common, and it is certainly admissible. Mr Phillips, who appeared for the claimant at the trial, did not believe he had told the judge that Mr Moreland’s evidence on matters of this kind was