CIVIL PROCEDURE:BACK TO BASICS 9: THE COURT NOT ENTITLED TO REJECT WRITTEN EVIDENCE UNLESS IT IS “SIMPLY INCREDIBLE”
There is a short passage in Wards Solicitors v Hendawi  EWHC 1907 (Ch) HHJ Paul Matthews (sitting as a judge of the High Court), that serves as a reminder of a basic principle in interlocutory proceedings – a court will not decide disputed issues of fact on the basis of written evidence.
“In the absence of cross-examination, the court is not entitled to reject any written evidence as being untrue, unless on the basis of all the evidence before the court it considers that that written evidence is simply incredible“
THE COURT CANNOT REJECT WRITTEN EVIDENCE AS BEING UNTRUE – UNLESS IT IS SIMPLY INCREDIBLE
The judge reviewed the evidence before him in the defendant’s application to set judgment aside.
The application notice is supported by a witness statement made by the defendant dated 28 March 2018. I interpolate that the defendant had also made an earlier witness statement in related bankruptcy proceedings, to which I will also refer in due course. The application to set aside was opposed by the witness statement dated 25 June 2018 of Charlotte Anne Gage, but further supported by the witness statements of the defendant dated 29 June 2018 and of Herold Buddington dated 29 June 2018.
This latter evidence was served very much at the last minute. But the claimant did not seek an adjournment in order to respond to it. I also record here that I was not asked to order cross-examination of any witness, and none was tendered for cross-examination. In the absence of cross-examination, the court is not entitled to reject any written evidence as being untrue, unless on the basis of all the evidence before the court it considers that that written evidence is simply incredible: see eg Long v Farrer & Co  BPIR 1218, -, applied in Shierson v Vlieland-Boddy  1 WLR 3966, CA, , Coyne v DRC Distribution Ltd  EWCA Civ 488, . I was not invited to disregard any of the written evidence on that basis, and do not do so.
THE EARLIER CASES
In Long v Farrer & Co  BPIR 1218, - Rimer J considered an appeal in relation to issues relating to privilege.
 There remains, however, Mr Collings’s more general point that the Registrar was faced with the task of deciding a factual issue on which he had directly conflicting witness statements. They were those of Mr Satow and Mr Belcher asserting that Mr Belcher was a Farrers’ client in December 1990; and that of Mr Gordon which, with masterly economy, was to the opposite effect. In my view that does raise a difficulty with the Registrar’s decision. The reason for that is that the Registrar was dealing with an application which (subject only to any appeal) finally decided the rights of the parties with regard to the s 366(1) application. It was, therefore, akin to a trial, albeit one of modest dimensions. It is, I believe, by now familiar law that, subject to limited exceptions, the court cannot and should not disbelieve the evidence of a witness given on paper in the absence of the cross-examination of that witness. The principle has traditionally been stated in relation to statements made under oath or affirmation, but it was not suggested to me that it does not apply equally to a witness statement. I will refer to three authorities.
 First, in In re Lo-Line Electric Motors Ltd and Others  Ch 477,  2 All ER 692, an application by the Official Receiver to disqualify the respondent, Mr Browning, from acting as a director, Sir Nicolas Browne-Wilkinson V-C said at 487B:
“Conflicts of evidence
In the present case there are many factual issues on which the evidence given by Mr Browning in his affidavits directly contradicts allegations made against him by the official receiver. Yet he has not been cross-examined. In my judgment proceedings for disqualification are no different from any other court proceedings: it is not possible for the court to disbelieve evidence given on oath in the absence of cross-examination of the witness. I therefore proceed on the footing that Mr Browning’s evidence is correct.”
I presume that the basis for the approach in the last quoted sentence was that the burden of proof on the disputed matters lay on the official receiver, so that, in the absence of cross-examination, the application of the relevant principle required the benefit of the dispute on them to be given to Mr Browning.
 Re Keypak Homecare Ltd (No 2)  BCLC 440,  BCC 117 was another director’s disqualification case. Harman J said at p 122G:
“As it seems to me, the conflicts of evidence which arise in this case cannot be resolved in the absence of cross-examination. Mr Millett submitted that I could choose which affidavit I should prefer. In my judgment that is not a possible exercise. When a judge is confronted with paper evidence only which contradicts each other he is left with no option but to say that he cannot identify which of the conflicting stories is correct, and he cannot disbelieve a statement put upon oath without cross-examination, unless some contemporary document plainly contradicts the affidavit evidence.”
Harman J was, therefore, not even prepared to give the respondent the benefit of the dispute raised by the conflict.
 Thirdly, in Re a Company (No 006685 of 1996)  1 BCLC 639,  BCC 830 (an application to restrain the advertisement of winding up petition on the ground that the petition debt was said to be the subject of substantial dispute), Chadwick J said, at p 648:
“The company’s case is that there is a dispute as to the terms agreed at the meeting in August 1995. It is said that, in the absence of any written agreement, the terms agreed can only be identified by resolving issues of fact to which the deponents have deposed on affidavit. It is said, of course, and said rightly, that the court should not seek to resolve disputed issues of fact on the basis of weighing one affidavit against the other without the advantage of hearing cross-examination of the deponents.
I accept that any court, and particularly the Companies Court, should not seek to resolve issues of fact without cross-examination where there is credible evidence on each side. But I do not accept that the court is bound to hold that there is a need for a trial in circumstances in which, on a proper understanding of the documents, the evidence asserted in the affidavits on one side is simply incredible.
The principles applicable were considered by the Court of Appeal in National Westminster Bank plc v Daniel  1 All ER 156,  1 WLR 1453. I refer, in particular, to the analysis of the authorities in the judgment of Glidewell LJ commencing at  1 All ER 156, 158,  1 WLR 1453, 1455, and concluding with the following passage ( 1 All ER 156 at 160,  1 WLR 1453 at 1457):
‘I think it right to follow the words of Ackner LJ in the Banque de Paris case ( 1 Lloyd’s Rep 21) . . . is there a fair or reasonable probability of the defendants having a real or bona fide defence? Lloyd LJ posed the test [in Standard Chartered Bank v Yaacoub  CA Transcript 6991 is what the defendant says credible? If it is not, then there is no fair or reasonable probability of him setting up a defence.’”
 The basic principle is, therefore, not an unqualified one. In particular, paper evidence which is manifestly incredible can be disregarded or disbelieved. But it will require a fairly extreme case for untested paper evidence to be rejected on that basis.
In Shierson v Vlieland-Boddy  1 WLR 3966, CA,  the Court of Appeal considered these principles in relation to a finding of fact that the debtor had moved country.
Applying those principles to the facts in the present case, I find it impossible to say that the judge was not entitled to reach the conclusion that he did – that the debtor’s centre of main interests had moved to Spain. The judge was clearly aware that there were grounds for suspicion that the move was self-serving and might not be genuine. But, unless he were prepared to disbelieve the debtor’s evidence as to what he was doing in Spain and why he was living there, the judge was bound to take that evidence into account. He held that it would not be fair to the debtor to disbelieve that evidence in the circumstances that the petitioner had chosen not to test it by cross-examination. He cannot be said to have erred in taking that view. As Mr Justice Rimer observed, in Long v Farrer & Co and another  EWHC 1774 (Ch) ,  BPIR 1218, 1233:
“It is . . . by now familiar law that, subject to limited exceptions, the court cannot and should not disbelieve the evidence of a witness given on paper in the absence of the cross-examination of that witness.”
That is not, of course, to say that the court is bound to accept untested evidence which is plainly incredible (ibid, ). But the debtor’s evidence as to what he was doing in Spain and why he was living there – in contrast to other evidence (for example, his evidence that he had had no connection with Millennium Investment International Limited) – was not of that character.
In Coyne v DRC Distribution Ltd  EWCA Civ 488 Lord Justice Rymber observed.