How many witnesses shall we use? Who is available? Who was involved in the key site meetings? Who was involved in the oral instruction to halt the concrete pour that caused the cold joint? Who heard the employer’s agent agree that the change was a variation and that the employer in the next interim application would pay it? These types of questions are common when there is a dispute, such is the desire to present a full factual picture to the adjudicator, arbitrator or court.

Recently, general counsel running a complex dispute asked: “Do we need all this witness evidence?” She asked because the documentary record (gleaned from Aconex) was comprehensive and because she was of the professional view that decision-makers are now encouraged to ignore witness evidence and instead rely purely on the documentary record. General counsel was thinking of Lord Leggatt’s comments in Gestmin SGPS SA vs Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), when he said: “An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.”

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