10 November 2022

Litigation risk is the risk that, however strong your case may seem, the Court may still be against you. It is something which every litigant should be aware of. The nature and degree of that risk will differ from case to case. It may be that there is a potential for the court to come form a contrary position on the law. However, most commonly, it refers to the prospect of the Court preferring the other side’s witnesses to your own.

The applicable law and procedure will all flow from the facts of the case. If the facts do not provide a foundation for the Court to make a finding in your favour, then it will not succeed. In making findings in fact, the Court will have regard to documents and the oral evidence of witnesses. For the latter in Scotland, there will be often little to no notice of what that evidence will be.

In assessing witness evidence, the Court will consider the witnesses’ reliability and credibility and in particular:

• The witnesses’ demeanor - although with the caveat that the importance of this has decreased as there has been a greater appreciation of how different people can react to the stress of appearing in Court.
• Whether the evidence is supported or contradicted by contemporary documentation.
• The absence of supporting documentation.
• The consistency of the witnesses’ own evidence.

These principals were applied in two recent decisions.

Decision 1

In Henderson v Benarty Medical Practice the pursuer’s case depended on her evidence being accepted that a GP appointment was cancelled by the GP receptionist against her request. The Judge found that the pursuer was an unreliable witness and preferred the evidence for the defender. That conclusion was reached by the Judge considering that there was no supporting evidence to show why the receptionist would have cancelled this appointment. The Judge also relied on inconsistencies between the pursuer’s evidence in court and her account to treating doctors at the time and, uniquely, what she had written in the book she had published about her illness. As a result of these findings, the pursuer’s case failed.

Decision 2

In Gilchrist v Police Scotland the pursuer claimed that she had suffered an injury whilst attempting to restrain, at the request of two police officers, a violent patient. The Sheriff preferred the defender’s witnesses. The defender had led the two police officers involved and, whilst not identical, their accounts were consistent with one another. Their evidence was also consistent with entries in the police notebook which were made within an hour of the event. This contrasted with the pursuer who had said nothing about the restraints to either of the experts who examined her and had no explanation for this failure. The pursuer had also given evidence of other details, such as a glass protruding from the patient’s chest, which no other witness reported. For those reasons the Sheriff rejected the pursuer’s account.

The Lesson

The lesson here is that whilst litigation risk can never be avoided entirely, it can be mitigated through thorough preparation and consideration of the whole facts of the case. In particular, the need for a witness’ evidence to be rigorously tested against all other available sources, including their past statements. If an inconsistency arises, then a convincing explanation should be sought for that. The results of that exercise would allow proper consideration of the risks a party faces in proceeding with their case and would inform, where appropriate, the parameters for settlement discussions.

Lewis Richardson, Senior Associate & Solicitor Advocate: lri@bto.co.uk / 0131 222 2939