‘Super 6’ recent UKSC Judgments on ‘evidence law’ – how to infer the facts as the foundation of a Judgment

Introduction

We live in a crazy modern world where people will challenge the facts of anything. Some people even claim the earth is not round – ‘flat-earthers’ as they are called. Flat-earthers claim that the earth different from every other known planet in the solar system, like ahem, the sun & the moon for example, which we can plainly see with our own eyes are round (albeit we may not understand the finer theories of gravity to explain how it actually works). The flat-earthers claim that the world is flat & a half-circle, where you could technically fall off the side of it if you are not careful. But I guess the flat-earthers do make one ‘correct’ point - who really actually knows for not just 99%, but 100% certain, if the earth is flat or not because who has actually flown up into space in a spaceship & actually looked at earth?! And the photographs of those who have done so could have been photoshopped?! Hmm, got us on that one…

The purpose here is not to spark a flat-earth debate, but to show how in cyber-space & the social discourse people’s views on the facts of what happened on almost anything can vary widely.

In a Court of law however there is the law of evidence to determine whose facts get upheld. This process of determining what actually happened in a Court case is called ‘inference’, or ‘inferring’ what ‘actually factually’ happened in the case.

This inference is the first part of any Judgment. Once we have done the inference & know the facts of the scenario, we can then interpret the laws that apply to this scenario. Law can indeed said to always come down to what Lawyers call ‘inference’ & ‘interpretation’, or indeed synonymously ‘truth’ & ‘justice’ as it popularly called.

Over the past few years, the UK Supreme Court has established many basic rules on the law of evidence – the method for how we set down the facts of a case (inference).

This means establishing rules on literally what factually happened in the case – what was said, written, & done, or indeed just as importantly, what was not said, not done, or not written - the structural foundations upon which any Judgment is built. It really does not matter how good your legal arguments are if your facts are not established to use it.

The UKSC has helpfully added some very important rules related to this in case-law – we must always be able to set the facts in a case with a good level of credibility & reliability. Due to the wacky world of politics, the law can be an ‘ass’ as the famous saying goes. Nonetheless, establishing the facts of what actually happened should always root the legal system in as much ‘common sense’ as possible.

Here are the ‘Super-6’ rules the UKSC has established in relation to this

(Click on the link to read the full case-summary. At the case-summary you can also find the Judgment in case you ever need to rely on it).

1. Testimony with fundamental contradiction(s) is not a credible witness – the law of evidence is essentially a game of contradictions (big, small, & medium, and adding it all up):No one ever has a perfect factual recollection & may well have minor inconsistencies after extremely close scrutiny of their testimony, but if a person fundamentally & glaringly obviously contradicts themselves, their application should be struck out. If there are multiple glaring fundamental contradictions in a testimony, it must be struck out.

2. Failure of an ‘Expert Witness’ to turn up to Court is a serious failure & undermines the credibility of the entire case, meaning the case may be dismissed:Lodging an Expert Report in the case is a big step. If there is an Expert Report prepared for trial by an Expert Witness & it is lodged in process, and then the expert does not turn up at the trial to speak to this, the application should be struck out.

3. Not providing relevant documents requested a big ‘no-no’ & means even a strong case could be dismissed: If there are actual documents relevant in the case, a witness cannot provide testimony from memory about what they say. Nor can a witness summarise what they say – the Court must be able to read the documents for themselves – this is a sub-section of what is called the ‘hearsay rule’. Relevant documents must be provided in the case to back up what is being said, & if they are not provided then this party’s position simply cannot go forward with any credibility. ‘Disclosure’ of documents is critical - the Court cannot operate on second best circumstantial evidence when direct evidence is available - justice is not seen to be done. Documents must be provided, and if they are not, then the application should be struck out. One document, one paragraph, one sentence, one phrase, even one word, or heck even one emoji, can turn a whole case completely on its head. Where documents are not provided it raises a strong presumption against a party’s position.

4. Person shown to have been slightly dishonest in the past not necessarily a deal-breaker – ‘Jenga’ on inherent credibility: Character evidence when a person has a chequered past of dishonesty can cause a problem. If a person can be shown to have been slightly dishonest in the past, even multiple times, this does not mean that they are not a credible witness. Quite frankly no one is perfect & the law of evidence reflects this - minor mistruths do not cause a person to lose all credibility as no one is perfect. Serious mistruths in the past may be a very different position however, as a person may have only told one mistruth but it is a showstopper & it causes them to lose all credibility. There is a bit of a ‘Jenga’ game process on determining this.

5. Short facts for a low value damages, and long facts for high value damages: The age-old question is, how long do we make the facts in Court pleadings – the answer has always been “how long is a piece of string”, but the UKSC has answered how long the proverbial piece of string is to be. In low value cases the facts should be made as short & simple as possible. A boat-load of facts for a simple case is an abuse of process & must be reduced. Big damages, big number of facts; small damages, small number of facts.

6. Expert Witness only has to provide one explanation & make it as persuasively as possible (a bit like Flat Earth theory!): If an Expert Witness is providing an Expert Report, they only have to explain what they think happened & why this is. They may then have to convince the Court of why at a trial if the matter doesn’t settle. An Expert witness does not have to go through multiple other potential explanations & explain why they do not think that happened in their Report. In a sense an expert presenting expert witness is a bit like flat-earth theory - experts just making their own case sound as strong as possible & not bothering if alternative theories are better. This case simplifies expert reports and ensures they are not too long & too expensive. The Expert witness can however have alternative positions put to them by the other side & in cross-examination at trial, but an Expert does not have to provide these themselves.

So those are the recent ‘Super 6’ rules on the law of evidence as set by recent UKSC Judgment. Although they are all rules, they all create a spectrum to be nuancedly applied in practice – it is a skilful process to get facts upheld!

Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.