Documenting everything is key to success

30th August 2019

Business disputes often consist of a series of incidents that occur over time. It is quite common to have little documentary evidence of what was said verbally by the parties and so a situation can hinge on parties’ recollections of what was said at the time. Such a situation is never good, as it can lead to uncertainty and difficulties of interpretation for the trial judge.

In the recent case of Simetra Global Assets Ltd and others v Ikon Finance Ltd and others [2019] All ER (D) 60 (Aug), the Court of Appeal stated the importance of contemporaneous evidence “as a means of getting at the truth, not only of what was going on, but also as to the motivation and state of mind of those concerned.” The Court of Appeal said that internal documents “tend to be the documents where a witness’s guard is down and their true thoughts are plain to see.” Whilst the Court of Appeal was cautious in treating its position on contemporaneous evidence as ‘a rule of law’, it concluded that such evidence is “…generally regarded as far more reliable than the oral evidence of witnesses…”

Whilst sometimes a laborious task, all internal discussions in relation to a dispute ought to be documented, whether that is in minutes of a meeting, a typed or handwritten note that is filed somewhere safe, or in an email to its participants. In any subsequent legal proceedings, these forms of contemporaneous evidence are useful when collating witness evidence and whilst the court is not required to place reliance on such evidence, it is likely to do so, as highlighted in the recent judgement.

Finally, caution ought to be taken when referring to any dispute in informal methods of communication, for example text messages and WhatsApp messages. Even informal contemporaneous evidence will need to be disclosed under a party’s duty of disclosure imposed by the court in subsequent legal proceedings.

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