HOW THE COURT ASSESSES WITNESSES: NOT A NUMBERS GAME
In TM -v- St George’s Healthcare NHS Trust  EWHC 1866 (QB) Sir David Eady considered the judicial approach to witnesses and the burden of proof, stressing that the assessment of evidence is not a “numbers game”,
The claimant was bringing a defamation action alleging she was libelled by hospital staff. Much of the case centred around what happened in the Accident and Emergency Department.
THE OBSERVATIONS IN RELATION TO WITNESS EVIDENCE
In circumstances of this kind, there is inevitably involved an element of subjective impression. Each of the witnesses who gave evidence would, if truthful, be giving his or her impression of what happened. For example, one cannot measure precisely what is “heated” or “loud” in the course of discussions or what is “confrontational”. Some allowance has to be made for that, by asking whether a reasonable onlooker could or would have described the relevant conduct in those terms. I am not suggesting that the defence of justification is inappropriate for the reason that these words were comment rather than fact, but simply that some descriptive terms are flexible and imprecise. On the other hand, a court should be able to determine, yea or nay, whether if a witness was struck in the chest it took place in circumstances giving rise to a defence, as is alleged here, by way of self-defence.
The standard of proof
The standard of proof in a civil claim of this kind is on the balance of probabilities. Which of competing or alternative scenarios is more likely to have happened? It is, however, recognised that the more serious, or the less likely, an allegation of fact appears to be, so the evidence in support of it will require to be correspondingly more cogent and persuasive. In this context, I was invited to consider the House of Lords speeches in Re D UKHL 33,  1 WLR 1499. This case provides an illustration. In so far as it is suggested that several professional witnesses have conspired to mislead the court about what happened, whether out of a desire to protect themselves from criticism or for any other reason, the evidence would need to be such as to overcome the prima facie implausibility inherent in such a scenario. Of course, it is possible that such wrongdoing may occur, and sometimes it does, as certain notorious cases in the past have demonstrated, but the judge (or jury as the case may be) needs to examine every aspect of the evidence with particular care before coming to such a conclusion.
I would add that in determining the cogency of evidence, in the face of conflicting accounts, the court will always guard against treating the exercise as a “numbers game”; that is to say, it cannot be right simply to hand the palm to whichever side has managed to muster the greater cohort of witnesses. In cases where a conspiracy really has taken place, it may well be that several people will be prepared to lie in order to advance their purpose. Close scrutiny is therefore required. I shall accordingly address the testimony of each of the witnesses who went into the witness box, individually, and I shall begin with those called on behalf of the defendant because it has the burden of establishing where the truth lies. It is also the case, as I have noted above, that they (or at least some of them) are alleged to have been prompted by malice in publishing what they did. Although in this respect the burden lies on the Claimant, it is intimately bound up with their primary evidence of what happened that evening and will be assessed at the same time.”
After going through the evidence of the witnesses in some detail the judge stated he preferred the evidence of the defendants and the claim was dismissed.