The VAR review: how documentary evidence decides the outcome of commercial disputes

Few innovations in modern football have generated as much debate as the Video Assistant Referee (VAR). Love it or loathe it, VAR exists for a simple reason: when a critical incident is contested, the system goes back to the footage. It doesn’t ask the players what they saw, nor does it rely on the referee’s instinct alone. It reviews the objective record.

English commercial courts operate on a remarkably similar principle. When the parties to a dispute offer competing accounts of what was agreed, what was said or what was intended, the court will look first and foremost at the documents created at the time. This principle, sometimes called the ‘primacy of contemporaneous documentation’, is one of the most consistent threads running through English commercial law.

Just as the VAR monitor replays what actually happened on the pitch, often contemporaneous documents replay what happened at the outset.

Reviewing the footage: types of documentary evidence

The categories of documentary evidence that routinely prove decisive in commercial litigation are broader than many businesses appreciate. In practice, courts rarely decide disputes on a single document in isolation; rather, they piece together the narrative by looking at how the agreement operates in practice and at a wide array of documents.

These can include:

• Contracts and formal agreements are the obvious starting point, but they are rarely the whole picture
• Correspondence, including emails, letters and even messaging platforms such as WhatsApp or Microsoft Teams, frequently provides the clearest window into the parties’ intentions and the commercial context behind a transaction. Courts are increasingly alive to the evidential value of informal communications
• Board minutes and meeting notes can establish when a decision was taken and on what basis, particularly in disputes involving directors’ duties or corporate governance
• Invoices, purchase orders and financial records are often key to settling disputes about the work carried out or the sums properly due
• Variation agreements and contract amendments are particularly significant, especially where the parties’ dealings evolved over the life of a contract. The written record of those changes (or the absence of one) can be the single most important piece of evidence before the court, albeit the court will undoubtedly consider the conduct of the parties’ throughout.

Clear and obvious: why documentary evidence wins

The reason documents carry such weight is straightforward. English courts have long recognised that human memory is fallible, especially when it concerns commercial dealings that may have taken place months or years before trial.

The reality is that honest witnesses can be unreliable, not because they are dishonest, but because memory is reconstructive by nature. Should a witnesses’ account differ to documentary evidence, the court will give weight to contemporaneous documents unless there is a good reason the witness can give as to why the documentary evidence does not tell the full picture – just like VAR shows the full lead up where the referee is considering a single moment in the action. A document created at the time of the relevant event isn’t affected by hindsight or by the pressures of litigation. It captures the position as it was and isn’t ambiguous.

Checking the monitor: practical steps

The practical implications for commercial teams can be significant, and the good news is that the steps required to protect your position are neither complex nor costly.

First, implement and maintain robust document retention policies so that key records are preserved in an organised and retrievable manner.

Second, make a habit of recording important decisions, negotiations and contractual variations in writing at the time they occur, not days or weeks later when recollections have already begun to fade. A brief confirmatory email following a telephone conversation, for example, can prove invaluable if that conversation or agreement later becomes the subject of dispute.

Third, where a dispute is anticipated or reasonably foreseeable, put a procedure in place promptly to ensure that relevant documents, including electronic records, aren’t inadvertently deleted or overwritten and instead are preserved. This is especially important given the procedural requirement on all parties to litigation to take appropriate action to ensure no relevant documents that are in their control are altered lost, destroyed or disposed of even if they do not support their claim.

Finally, ensure that any variation to an existing contract is properly documented and signed by the relevant parties, rather than left to rest on an informal conversation or a handshake.

The final whistle: controlling your record

In football the VAR review provides important clarity in an otherwise ambiguous circumstance where the wrong or unjust decision may be made. It is much the same in commercial litigation that often, documents can be integral in assisting the court in reaching a just outcome.

The lesson is the same in both arenas: when the decisive moment is under scrutiny, it’s the ability to see the full picture that often determines the outcome. The difference, of course, is that unlike VAR, you have complete control over the quality of your documentary record.