Looking for evidence about what your opponent has done in the past

Is what your opponent has done in the past relevant?

In looking for evidence which may help your civil case in a court or other tribunal, it is important to keep a balance between being open to new avenues of enquiry and focussing on the lines of enquiry most likely to turn up something useful.

It is easy to over-estimate the importance of information about what your opponent has done, or is alleged to have done, on other occasions with other people and it is worth asking a lawyer to advise on whether your line of proposed enquiry is likely to be useful. You never know exactly what you are going to find until you start looking , of course, but a lawyer with experience of the kind of dispute you are involved in may be able to tell you, from their experience,  which lines of enquiry are more likely to turn up something useful and which may well turn out to be a waste of time.  

Some people think that if they can prove that their opponent lied in the past about some matter, not related to the case, that that will show that they are a liar who should never be believed. However in the absence of a written admission by your opponent that they have lied (which would be unusual) proving that they have lied on a previous occasion involves showing precisely what they said on a previous occasion, showing that it was factually untrue, and showing that they must have known at the time that it was untrue. Proving all that would generally require witnesses, and the other side might allege that those witnesses have themselves, in the past, told lies and might want to use further witnesses to prove this, etc. etc. To prevent the tribunal process becoming too long and raising too many side issues, the courts and tribunals are generally reluctant to allow time to be taken up with evidence that your opponent has lied on a previous occasion unless the lie has some connection with the case and/or the witnesses to the lie are already witnesses in the case for other reasons.

Some people think that if they can establish that someone has incontrovertibly done unethical things in the past, that will help by showing that they probably behaved badly in the current matter as well, but tribunals are generally reluctant to take too much notice of what people have done in the past in other circumstances - even if it can be proved fairly easily - unless it has some specific relevance to the current dispute. If someone else has, in the past, had a similar experience to you when dealing with your opponent normally that will not be sufficiently relevant for the tribunal to allow evidence about it to be considered. For example if you have bought machinery from a supplier which keeps breaking down, the fact that you have found out that someone else bought a machine from the same supplier, and that machine also had problems, is not, without more, likely to be of much assistance in your case. The tribunal hearing your case will want evidence about what was wrong with your machine and about the terms of the contract of sale which you entered into.

There might be a few cases, however, where what an opponent has done, on other occasions, with other people, might be sufficiently probative to be useful as  "similar fact evidence". For example if your opponent is a business which claims that something it did in its dealings with you (which is relevant to the outcome of your case) was not deliberate and the timing was pure co-incidence, and if it can be proved that such “co-incidences” happened in a number of previous similar instances with other people dealing with your opponent, that tends to undermine your opponent’s argument that it was pure co-incidence.

Take another example. There may be a dispute about whether the representative of a business you are in dispute with gave you a certain warning about something important (if the company should have warned you and you have suffered loss because they did not). You may have a clear recollection that the company did not inform you. The representative of the company will probably not have a very clear memory if the representative has dealt with hundreds of other customers since, and the company may have no compelling evidence that its representative, on that specific occasion, did give you the warning. The company may claim, however, that it has a strict procedure and all company representatives are required to, and do, give the warning before the customer buys the product. If the company is relying on the fact, or alleged fact, that it has a strict procedure to try to prove that, on the balance of probabilities, on this occasion also its representative would have given the warning, then proof that on other occasions, with other people, this representative (or even perhaps another representative) did not in fact give the relevant warning, tends to undermine the company’s argument that it did/does have a procedure which is/was always strictly followed.

So these are two examples where what has happened to other people who dealt with your opponent on other occasions might be relevant. However usually what happened to other people on other occasions turns out to not be sufficiently relevant to be useful, or may raise more questions than it answers, and, in most civil cases, the evidence presented to the tribunal consists only of much more direct evidence about the specific matters in dispute – i.e. the evidence of people directly involved and contemporaneous documents directly relevant to the particular situation in dispute.

How much time you are prepared to spend extensively searching, beyond the obvious, on the off chance of finding something which might help your case depends on how important winning the case is to you and on how much time you have available. There are a number of ways you can search, if you decide to do so. One potential source of information is any past cases involving your opponent.

Records of cases in Courts and other Tribunals

Barristers look at the past decisions of the higher courts and other higher tribunals because they set legal "precedents" - i.e. they establish or confirm legal rules which are of general applicability and which lower courts and other lower tribunals are then obliged to follow. But a barrister you engage will not look specifically for cases involving your opponent so if this is to be done, you would need to do it.

The reasoned decisions (judgments) in some cases in England and Wales are available free online from the website of the court or other tribunal concerned. See www.judiciary.uk/structure-of-courts-and-tribunals-system In addition many cases are collected together in the National Archives caselaw.nationalarchives.gov.uk But coverage is patchy: in some tribunals most decisions in recent decades are available whereas in others only a small subset of cases are available. If you want to look for cases in other jurisdictions - e.g. Scotland, Guernsey or Australia - you could try www.worldlii.org

If you find a decision you are interested in, the next step is to obtain copies of publicly-available documents from the file held by the court or other tribunal. Every case is given a number (such as PT-2023-123456) and a name which normally indicates the names of the parties in the case, such as Smith v Jones. If you want to ask a tribunal office for copies of documents from a case, it helps if you know the number of the case although they  might be able to trace cases by the name of one of the parties and/or the year the case was started. 

The offices of some tribunals have an online system which you can use to search for cases and request copies of documents. Otherwise you may have to visit the office of the tribunal which dealt with a case. Of course the tribunal can only supply copies of documents it has retained - many documents provided by the parties to the tribunal are not retained.

Having located a promising case,  often the best place to start with documents for that case is to look at what are called the "statements of case" in which the parties to the case set out what the case is about and what the key assertions of each party were. Statement of Case may be entitled e.g. Applicant’s Statement of Case but some have other names such as  Claim Form, Particulars of Claim, Defence, Reply to Defence, Defence and Counterclaim, Reply and Defence to Counterclaim, or Reply to Defence to Counterclaim. The statements of case should also give the full name and address of the parties which will help you check that your opponent really was one of the parties (and it is not just that they have the same name by coincidence). 

Statements of case show what each side alleged and give a flavour of what the case was about and if, having read the statements of case, it appears to you that something in the case you have found might be relevant to your own case, the next stage is to decide how the information could help in your own case, and you should seek legal advice about this. It is important to realise that it is not a simple matter of saying that the tribunal in the previous case has decided some fact, and so that is settled. You cannot normally rely directly on the reasoned decision in the previous case if neither you nor your predecessor in title was a party to that case but it might be, purely by way of example, that someone involved in the previous case has a letter written to them by your opponent which might be useful evidence in your case.

If you decide to try to contact someone involved in the previous case and ask them if they would be willing to help by providing information and/or copies of documents you should be aware that they may be in possession of documents which they are not allowed to show you without specific permission from the  tribunal.  In many proceedings each party will have been ordered, as part of the process, to send ("disclose") to the other side copies of all relevant documents they possess whether or not they propose to rely on them. This may be quite an imposition but usually the rules at least prevent the other side from using the disclosed documents for any purpose outside the proceedings they are disclosed in without specific permission from the tribunal. It is different if a document is actually read out in full at a public hearing (or is a witness statement taken as read) but most litigants will not remember exactly which documents provided by the other side were read out so they may only show you their own documents - including any letter or email they received from your opponent before the previous case started - but not documents subsequently disclosed to them as part of the proceedings. 

Disclaimer

This information page is designed to be used only by clients of John Antell who have entered into an agreement for the provision of legal services. The information in it is necessarily of a general nature and will not be applicable to every case: it is intended to be used only in conjunction with more specific advice to the individual client about the individual case. This information page should not be used by, or relied on, by anyone else.

This page was lasted updated in February 2024 Disclaimer