[2018] EWHC 178 (TCC)

This case started off as an application by Dacy to enforce the decision of an adjudicator. IDM’s position was that there was no contract with Dacy which meant that no adjudicator could have jurisdiction to deal with any dispute that may arise. This was one of the very rare adjudication enforcement cases where a full trial was ordered. Dacy’s case was that a contract was agreed orally at a meeting on 3 December 2015 attended by three people. The Judge heard oral evidence from all those who attended the meeting. One interesting feature about the judgment was the comments made by Mr Justice Fraser about how a court approaches witness evidence:

“Watching a witness answer questions, and considering not only what they actually say, but how they say it, and also considering that evidence against contemporaneous documents, can give a tribunal a very good idea of what actually transpired on any particular occasion. Oral statements are not however the whole story.”

The Judge noted that often a witness will try to recall events from many years back, which led him to recall Leggatt J’s comments in Gestmin SGPS SA v Credit Suisse UK Ltd [2013] EWHC 3560:

“the best approach for a judge to adopt in the trial of a commercial case is, in my view, 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. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject 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. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

Of course, everything depends on the particular circumstances of the witness, the lapse of time, the case and the nature of the issues. In construction disputes, especially in this digital era, there can be a significant amount of contemporaneous correspondence. Therefore, in the case here, where the central issue was what was agreed orally at a particular meeting, the Judge said that there were what he termed “common sense conclusions” that could be drawn from not only the documents, but also the circumstances. This did not mean that the oral evidence was of no assistance. However, it was not necessarily “the paramount source of authenticity”. Here a combination of factors helped sway the Judge. The evidence from the key individual for Dacy, at the adjudication and at the trial, was very similar to the contents of a text message. Dacy’s evidence was also supported by a third party.

Another issue was that there were a number of IDM entities, for example the Defendant IDM Properties LLP, IDM Investment Holdings Ltd and IDM Construction London Ltd. Dacy was given a business card from the Defendant at the 3 December meeting. Mr Justice Fraser commented that he found that the number of companies with very similar names, all with IDM in their title, with the consequence that it was possible to “almost seamlessly and interchangeably” attribute acts or relations to whichever IDM company suited at any particular time, to be an “unsatisfactory feature”. Further, the contemporaneous documents showed that IDM Properties had at this time started corresponding about engaging subcontractors directly. Taken together, this all led the Judge to conclude that Dacy was told at the December meeting that it would be contracting with IDM Properties, who would pay Dacy, and that a binding contract was made.