PROVING THINGS 170: YOU CAN’T GIVE EVIDENCE BY WAY OF SUBMISSIONS (HONESTLY, YOU CAN’T)

One important aspect of the judgment in Bates & Ors v the Post Office Ltd (No 6: Horizon Issues) [2019] EWHC 3408 (QB) is the judge’s criticism of the defendant’s attempt to give “evidence” at the stage of closing submissions.

“Submissions should not contain evidence, or positive evidential assertions, that are not present in the evidence served in the trial. This is a fundamental point… It is not appropriate for detailed factual assertions to be made in closing submissions that are not directly referable to evidence in the case. There is no way such factual assertions can be tested; if they come in closing submissions, there is no way that the opposing party can deal with those assertions in their own evidence, or even put relevant points to witnesses for the other party in cross-examination. “

THE CASE

The judgment was given at the end of a trial relating to defects in the Post Office computing system.   The judge commented that
“69. Further, before turning to the detail of each side’s evidence, an approach was adopted by the Post Office on occasion of seeking to adduce what was (or should have been) in reality evidence of fact, but by way of submission, or points made “on instruction”. Sometimes, depending upon the nature of the subject matter, such an approach is understandable or unavoidable, and may be unobjectionable. It is not therefore sensible to state that this should never be done in any conceivable circumstance in any trial. However, on important points that have been dealt with by a particular witness in their evidence of fact, it is not a suitable device to adopt. This was particularly done in terms of the cross-examination of Mr Coyne concerning evidence already given by Mr Godeseth in his cross-examination, about alteration by Fujitsu of a particular branch account. I deal with that in detail at [376] to [379] below.
  1. This was also done in Appendix 2 of the Post Office’s Closing Submissions, where (sometimes detailed) factual explanations were given in respect of bugs in the Bug Table. That appendix was compiled by different teams of solicitors and counsel, something explained by the Post Office when, some months after it was submitted, they discovered that three pages were missing and sought permission to serve them rather late. I granted permission for them to be added, as they had been prepared before the deadline for service and omitted due to an administrative oversight.
  1. Submissions should not contain evidence, or positive evidential assertions, that are not present in the evidence served in the trial. This is a fundamental point. I provide some examples in the Technical Appendix by reference to specific entries for specific bugs. Blurring (or ignoring) the lines between submission and evidence is entirely unhelpful. Evidence is something that comes from a witness (lay or expert) and which the opposing side is entitled to test by way of cross-examination. It is not appropriate for detailed factual assertions to be made in closing submissions that are not directly referable to evidence in the case. There is no way such factual assertions can be tested; if they come in closing submissions, there is no way that the opposing party can deal with those assertions in their own evidence, or even put relevant points to witnesses for the other party in cross-examination. “