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.
Applied by Evans v Barclays Bank plc [2025] UKSC 48 (2025-12-18)
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Evidence; disputed documents; perversity. In a race discrimination claim the claimant said his signature had been forged on six documents the respondents disclosed about feedback on his work. The tribunal held that the documents were not central to the issues, that the forgery had not occurred in the course of the proceedings and that neither of the respondents' witnesses was aware of it, and it preferred their evidence that feedback had been given. The EAT dismissed the appeal: the tribunal was entitled to find the documents not central, and even if they had been, the witness evidence meant it would have made no difference.
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; 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. [Summary not yet checked against the judgment.]
Evidence; credibility and reliability. For a fact-finder to be entitled to accept evidence it must be satisfied that the evidence is reliable as well as credible: a witness may be honest and doing their best to tell the truth yet their evidence may not be reliable, which involves looking at how the witness gave evidence, conflicts in it, its clarity or lack of it, and the evidence as a whole. The tribunal's findings were set aside where it accepted the claimant's evidence on an essential matter despite matters calling her reliability into question, and the case was remitted to a fresh tribunal; it was not, however, an error of law for the tribunal not to recall the employer's witness of its own motion.
Unfair dismissal; reason for dismissal; witness credibility; perversity. A fact-finder may have regard to a witness's credibility or reliability on a collateral matter when deciding whether to accept their evidence on a central issue, and it is not in principle an error of law to do so [21]. But the tribunal's finding that the employer's two witnesses were not credible and reliable at all was perverse when it had accepted significant parts of their evidence; it gave inadequate reasons for rejecting their evidence and failed to take account of relevant evidence. Its conclusion that the employer had not established redundancy as the reason for dismissal was set aside and the case remitted to a fresh 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].
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
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.)
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
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].
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
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. On an appeal about whether competition collective proceedings should be opt-out or opt-in [2], the Supreme Court restated the general common law rule that findings made by another decision-maker are not admissible as evidence of the facts found [144]. The rule rests on fairness: a fact-finding tribunal must base its findings on its own evaluation of the evidence [144]. It applies in the Competition Appeal Tribunal [152], and in its strong form against a person who was not party to the earlier process [153]. It is not confined to judicial or quasi-judicial decisions [155]. Relying on earlier findings to identify evidence reasonably expected at trial is not inconsistent with the rule; nor is relying on prior judgments so far as they record evidence [159]. A Commission decision against a third party was inadmissible [167]. The appeal was allowed and the Tribunal's refusal of opt-out certification reinstated [170].
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Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.