The quality of the evidence in business disputes presented by an organisation in support of its claim/defence to a claim is of paramount importance to obtain a successful result. As such, this should be at the forefront of investigations as soon as the business realises that there is a dispute.
Evidence in business disputes
Facts in issue
A fact which either party must prove to succeed in its claim/defence of a claim which the other party either denies or does not admit. Evidence can be documentary or oral. The majority of the documentation will be served on both parties during the Disclosure Phase.
Parties involved in the proceedings are under a duty to disclose documents within their power, custody and/or control relevant to facts relevant to the dispute. This includes any document which may adversely affect their own claim/defence. This is usually the most expensive phase of litigation as it not only includes hard copy documents, but also electronic documents too. It may be necessary to instruct IT specialists to recover documents from internal systems/mobile phones/laptops. Documents held by third parties who are not party to the litigation may also have to be disclosed.
The disputing parties will have submitted, with their letter of claim/response letter, documents which assist in proving/defending the claim. They will likely have considered at this early stage where relevant documents are stored and how they are going to collect them. If they have instructed a solicitor early on, they will have been advised to preserve any documents relevant to the dispute, as they may be sanctioned by the Court if it later comes to light that relevant documents have since been destroyed.
The parties are also under an obligation to send written notification to all relevant employees/former employees identifying the class of documents to be preserved and that they should not delete or destroy those documents. This can be a sensitive situation if there is some reason that the party does not want their employees to know about the nature of the dispute.
There may still be a duty to disclose certain documents if they fall within a disclosure order, however, the parties concerned may be entitled to withhold inspection on the basis that they are privileged.
Privilege can attach to without prejudice documents which show a genuine attempt at settlement and legal advice notes between a client and its solicitor in relation to litigation.
Witnesses who have knowledge of the facts in the dispute and who the business intend to rely on in Court will prepare a witness statement (after the disclosure phase). Witness statements can also be used to fill in facts which the documents disclosed do not show.
It is normal practice for witness statements to stand as evidence-in-chief. Therefore, at trial, a witness’s oral evidence will usually start under cross examination by the opposing party.