Commercial law monologues: Should a witness be cross-examined when oral evidence is contradicted by documentary evidence?

In commercial cases, courts and tribunals increasingly attach greater weight to contemporaneous documents on record rather than oral accounts of what was said (or happened) in the past. Does this mean that oral accounts of a witness need not be cross-examined during trial at all?

Lord Justice Leggatt, now a Judge of the Supreme Court of the United Kingdom, observed at paragraph 22 of Gestmin SGPS SA v. Credit Suisse (UK) Ltd., reported at [2020] 1 CLC 428 (“Gestmin Case”), that “the best approach for a judge to adopt in the trial of a commercial case is… to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.” It is sometimes misunderstood that cross-examination of oral testimony is unnecessary, in the face of contradictory contemporaneous documents, based on this statement in the Gestmin Case.

However, the evolving judicial precedent after the Gestmin Case suggests that while contemporaneous documents should ordinarily form the primary factual baseline, they may also suffer from the same potential fallibilities as human memory itself.  

Justice Cockerill DBE in Rechtsanwalt Dr. Michael Jaffé and another v. Greybull Capital LLP and others, reported at [2024] EWHC 2534 (Comm) (“Jaffé’s Case”), observed as follows: 

“200. Finally I drew the parties’ attention to the important lecture given by Popplewell LJ to COMBAR last year: “Judging Truth from Memory”. The Popplewell Lecture updates and expands upon the matters considered by the then Leggatt J in Gestmin. It deals with the value of recollection, the nature of the fact-finding exercise in commercial litigation, the science of memory and the problems which result from faulty encoding of memories.

201. Passages of particular interest (either to myself or the parties) include the following…

… …

“55. … contemporaneous documents… may be produced near the time, but they are produced after the memory has been encoded, and if there is an encoding fallibility, which there may be for all these different reasons, it infects the so called contemporaneous record every bit as much as other reasons for the fallibility of recollection which affect it at the storage and retrieval stage.””

“231. Ultimately therefore the document can be taken as the basis for a compelling argument; but it itself must be tested against the facts in the full context. That context includes considering what was common to both parties in terms of knowledge, but also what (if anything) the parties were each focussing on which did not get communicated to the other side, which might affect both encoding and recording or which might affect how Mr Meyohas expressed himself.”

In the Jaffé’s Case, Justice Cockerill undertook a detailed analysis of oral evidence and concluded that the contemporaneous document was “in the critical respect (entirely innocently) inaccurate”.

Therefore, cross-examination affords an opportunity to test not only a witness’s oral account but also the truthfulness of the contents of those contemporaneous documents. 

In fact, in the same paragraph 22 of the Gestmin Case, Justice Leggatt had also observed that the strength of cross-examination lies in subjecting “the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events.”

The contents of a document should not be confused with the truthfulness of those contents. If the truthfulness of the contents of a document is contested by the opposite party, the party tendering the document is required to prove the truthfulness and correctness of the contents in the same manner as a relevant fact is proved under well-settled principles of law of evidence. [See Om Prakash Berlia and another v. Unit Trust of India and others, reported at AIR 1983 Bombay 1, at paragraph 3 to 7 and 12; Ramji Dayawala and Sons (P) Limited v. Invest Import, reported at (1981) 1 SCC 80, at paragraph 12]

Section 94 to Section 103 in Chapter VI of the Bharatiya Sakshya Adhiniyam, 2023 (“BSA”) relating to the exclusion of oral evidence by documentary evidence provide for the limited circumstances in which oral evidence may be given in the face of documentary evidence.

Even Indian judicial precedent suggests that while contemporaneous documents form the primary factual baseline, they are often subjected to scrutiny by courts and tribunals based upon oral evidence and/ cross-examination by the opposite party, which may impact the credibility or reliability of documentary evidence. For example, in Laxminarayan and another v. Returning Officer and others, reported at (1974) 3 SCC 425, the Supreme Court observed that: 

“60. … In his examination-in-chief Kalankar has deposed that the extract was correctly recorded by him while Dhote was speaking. But in his cross-examination he has made this admission: ‘It is possible that if the speaker had said: “Bhrashtachari Congresscha Sharma” a word might have been missed. Now, I say that the word “Congresscha” might have been missed’. … there is a world of difference between ‘Bhrashtachari Sharma’ and ‘Bhrashtachari Congresscha Sharma’. …This admission of Kalankar in his cross-examination casts doubt on the accuracy of his recording of Dhote’s speech in this meeting.

61. Two other circumstances also enhance our doubt. Admittedly, Dhote spoke in Marathi. Kalankar is not a Marathi short-hand writer. So he says that he took down the speech of Dhote in long hand in Marathi. It is quite possible that in the long hand recording of a speech some words might be missed by the reporter. … On account of all these circumstances, we are not sure that the extract is a correct recording of the speech of Dhote. Hence we will exclude from evidence the aforesaid extract as being inadmissible in evidence.”

As a result, it is permissible (and often advisable) to cross-examine a witness with respect to the circumstances that go to the admissibility of the oral evidence given by that witness during examination-in-chief, or to the truthfulness of the contents of a document, in respect of which he or she has deposed. [Amongst others, see Section 147 to Section 149, Section 151, Section 156 and Section 158 of BSA]

The party against whom oral testimony in respect of documentary evidence is given must be provided an opportunity to cross-examine that witness on that evidence. This is not merely a rule of evidence but also a rule of natural justice. [See Bareilly Electricity Supply Co. Ltd. v. Workmen, reported at 1971 (2) SCC 617, at paragraph 14]

Conversely, the consequence of not challenging or testing the disputed evidence during cross-examination is well settled, both under English law and under Indian law. Subject to certain exceptions, this omission can lead to an adverse inference against the party that has not availed of the opportunity to challenge the disputed evidence.

In Muddasani Venkata Narsaiah v. Muddasani Sarojana, reported at (2016) 12 SCC 288, the Supreme Court, at paragraph 16, observed that “cross-examination is a matter of substance not of procedure”. A party is required to put their version to the witness, and “if no … questions are put, the court would presume that the witness account has been accepted”.

Recently, the Supreme Court of the United Kingdom explained in
Griffiths v. TUI UK Ltd., reported at [2025] A.C. 374 (“TUI Case”),  that this principle is as applicable to expert witnesses as it is to witnesses of fact. In paragraph 70 of the TUI Case, Lord Hodge held that “The general rule in civil cases… is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses.” While this rule is subject to certain exceptions, generally if a party has decided not to cross-examine a witness on a particularly important point, that party will not easily be able to submit to a court or tribunal that the evidence on that point should be rejected.  

The evolving judicial precedent under English law as well as under Indian law suggests that while contemporaneous documents form the primary factual baseline, they are often subjected to scrutiny by courts and tribunals based on cross-examination by the opposite party.

Since cross-examination affords an opportunity to test not only a witness’s oral account but also the truthfulness of the contents of those contemporaneous documents; subject to certain exceptions, the omission to cross-examine can lead to an adverse inference against the party that has not availed of the opportunity to challenge the contested evidence.

Gaurav Pachnanda is a Senior Advocate, based in New Delhi, whose practice includes a wide range of commercial litigation, international commercial arbitration and intellectual property litigation.