Giving Evidence

The object of this note is to help you consider and prepare to give evidence.

There are two types of evidence: (1) oral evidence; and (2) documentary evidence.

The Courts attach considerable importance to oral evidence. However, it also appreciates the difficulties of giving evidence years after the events in question. The function of a trial is for the Judge to make a decision on the balance of probabilities. He is not seeking to find out the truth but what appears to be the truth based on the materials put before him. Judge Park J put the matter as follows (Hadley v Kemp [1999] EMLR 589):

“What is the judge to do when, as in this case, he receives conflicting evidence and does not believe that anybody is lying to him? He has to look at a range of factors, weigh them up, and form a considered view of where the balance of probabilities lies. In doing that he has to look at the demeanour and the quality, as he perceives it, of the witnesses. He has to ask whether there are any independent witnesses whose recollections may be less likely to have been moulded by a natural desire to win the case and a person’s human belief that he is in the right. He has to ask which version of the facts seems more probable. He has to ask whether there is any reason why the witnesses on one side are more likely to have remembered the events more accurately than the witnesses on the other side. He has to ask whether there are pointers from contemporary documents. In the last analysis he has to remember that the burden is on the plaintiff to establish his case. It is only the civil burden – the balance of probabilities – not the criminal burden – beyond a reasonable doubt – but if the judge feels that the case is evenly balanced the plaintiff loses”.

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