Oral Evidence vs Contemporaneous Evidence

We recently successfully defended a commercial contract claim after a two-day trial.

The case was about an alleged oral contract to supply services. Both parties gave evidence about what they believed was said in a phone call.

The Court found entirely in our client’s favour.

Relevant case law

During the trial, the court applied the case of Gestmin SGPS S.A v Credit Suisse [2013], which states that the Court cannot always rely upon witness evidence alone, as memories fade. This case explains that even though a witness may be confident in their recollection of an event, it does not mean their recollection is accurate, which is especially true when recalling past beliefs. Therefore, the use of contemporaneous documents when evaluating evidence is important as it is based on the facts that happened at the time it was created.

The Judge in Gestmin held that a Court should “…place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.”

This case does not reject the idea of using oral evidence, however, the Judge concluded that it should be used as secondary evidence in those circumstances.

Our Client’s Trial

During our client’s trial, the court reviewed various WhatsApp messages and email correspondence sent between the parties regarding the alleged contract which was formed. Upon reviewing the contemporaneous correspondence it was concluded that no contract had been formed. There was no “meeting of minds” with various options being merely put on the table.

Summary

This case highlights the importance of contemporaneous evidence when proving whether a contract exists. This also shows that despite oral evidence being important, sometimes a witnesses account of a situation may not be entirely accurate even if they are being honest.

If we can help you with similar issues, please contact Lloyd Clarke ([email protected]) or Edward Powell ([email protected]).

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