Ask Auntie - Silent witness - Avoiding the risks of bad witness evidence

November 20, 2014

Dear Aunty

I am the Head of Human Resources at my employer business (the “Company”).  The Company has very recently been involved in High Court litigation brought by a previous employee.  Although we had a good case, we were plagued by lack of witnesses or witnesses refusing to co-operate.  Some of the witnesses were former employees, but most of them were current employees.  In the end, we had to settle the matter in order to avoid the risk of losing at trial for lack of evidence to support our case.  I believe that we could have reached a far better deal had we managed to secure the witness evidence we needed. 

How can we avoid this happening again?

Yours sincerely

Sue Me

_______________________________________________________________________

Dear Ms Me

Whenever you embark on any litigation, whether as the party doing the suing or the party being sued, you should always first ensure that you have everything you need to prepare and support your case.  If not, it would commercially (and sometimes reputationally) far better to settle the dispute as swiftly as possible.

I appreciate it is too late to salvage your recent run-in with litigation, but the below tips should assist you the next time this issue arises (there is always a next time for litigation, I am afraid).

1.  Get your ducks in a row before running to court

Cases can sometimes be fought just on the documents, but more often than not witnesses are needed to provide context to the documents.   Most importantly, witness evidence is needed on those matters that cannot be explained by documents or where there are no documents on a particular issue.

So before you file your claim or your defence, make sure you can back up what you want to say with evidence:

  • Do you have the witnesses to support the points you make in your claim / defence? 
  • Do you have the witnesses to rebut and / or to give an answer to points raised (or likely to be raised) by the other side?
  • Witness and documentary evidence work hand in hand – you cannot assess one without the other.  Have you searched for and identified the relevant documents to you case? 
  • Do you have the right witnesses to explain / discuss issues arising on the documents? 

2.  Once you have identified the potential witnesses, tee them up immediately

Before you commence your claim or file your defence, speak to your witnesses:

  • Explain to the relevant employees that you need them to be witnesses and explain on what issues you need them to give evidence.
  • If they are due to leave the business, prepare their witness statement (with the assistance of in-house or external lawyers) and get them to sign it before they depart.
  • If they have already left, contact them as soon as possible and explain they need to be witnesses and on what issues.  Unfortunately, without any post termination contractual obligations in place (see below), you cannot compel them to give evidence if they object.
  • You can in certain circumstances apply to the court for a witness summons to compel a (UK based) witness to attend court to give evidence.  But very careful thought must be given whether you want to force someone to give evidence; they are unlikely to be much help to your case if they are doing something against their will!  
  • Involve your witnesses in the preparation of the case from the start: you do not want to put forward a case that ends up being inconsistent with the witness evidence.
  • Refresh their memories of the issues at hand: get them to go through their files and read the documents.  You will need them to assist you with the search for relevant documents in any event.
  • Remind the employees of their duties to their employer, in particular their duty of confidentiality.  They must not discuss the case with anyone outside of the business, in particular anyone connected to the opposing party.  Be particularly wary of this if the opposition is a former employee.
  • Once you know the date of the trial and any other key dates, block those dates out in the witnesses’ diaries.

3.  Include reasonable assistance clauses in contracts

Often the witnesses you need are the ones that have left.  In order to avoid the hassle of trying to persuade a former employee to give evidence, you can impose obligations on them requiring them to do so.  

This is achieved by insisting upon a ‘reasonable assistance’ clause in the employee’s contract on joining and / or in their compromise agreement on departure.  The wording can vary, but the clause is designed to impose an obligation upon the employee to provide reasonable assistance to the business in disputes / litigation with respect to matters in which the employee was involved or on which they have knowledge.   

4.  Ensure the witnesses have access to all the material they need

  • Allow the witness access to all documents arising in the proceedings, including:
    • the statements of case of both parties; and
    • the underlying documents and witness statements of both parties.
  • Cross check everything your witness says against the documents: they’re only human and cannot be expected to remember everything, but it is very embarrassing if they say something that the other side can show to be factually wrong. 

5.  Don’t scare them!

Being a witness in proceedings can be daunting, so make sure you provide them with the comfort and support they need:

  • Explain clearly the role of a witness early on, the witness should know that:
    • They will need to sign a witness statement of their evidence, which will form the basis of their evidence (known as ‘evidence in chief’).
    • They will be required to give oral evidence at the trial, and the other side can question them on matters raised in their witness statement.
  • You cannot coach or a witness (that is, tell them what to say), but you can familiarise them generally with what to expect from giving evidence at court.  There are training courses available that can assist in this regard. 

Related pages:

Experts on the human side of enterprise more

Litigation, Arbitration and Alternative Dispute Resolution more

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