Litigation and settlement strategy: handling a dispute: establishing the facts
Where a specific risk or issue has been identified you must establish any relevant facts before you can make any decision on the consequences.
You will need to carefully consider all the available evidence in order to establish the relevant facts. You will need to do this in relation to both sides of the dispute. You may also need to critically examine whether the facts and evidence are relevant to the dispute.
It is important to distinguish a fact from a belief or an assumption. Most facts should be capable of being supported by evidence. Often this will be documentary evidence. However, there may be instances of facts that turn on the person’s view of why something was done. A person’s written or oral evidence may be presented before a tribunal, for example.
Evidence is simply something that we consider supports a disputed fact. Evidence can take many forms. Frequently in disputes, we use documents as evidence. These might be accounts, bank statements, notes of meetings or inspection visits, advertising material and all the other bits of paper or electronic data that you may look at during a compliance check.
Evidence might take the form of a physical object. This could be an item seized or an object on business premises, for example, a machine on which a disputed capital allowances claim has been made. A frequent and important form of evidence comes from witnesses. This will take the form of a written witness statement and oral evidence that may be presented at a tribunal hearing.
There is sometimes a tendency to discount what we are told as being inherently less trustworthy than documentary or physical evidence. Oral evidence at a tribunal, which will almost invariably be given under oath or affirmation, is usually given great importance by tribunal judges and may be considerably more persuasive to them than it might be to our decision makers. Judges are likely to accept as fact anything that is given by way of oral evidence unless it is very obviously contradicted or unreliable, or rebuttal evidence is adduced to prove otherwise. In other words, we should presume the tribunal will take oral evidence at face value unless there is a very good reason not to.
Establishing facts and underlying evidence as quickly and efficiently as possible
You should discuss and agree with the person what the relevant facts are and how these should be established. For example, you might establish the facts by
- obtaining original documentation
- making site visits, or
- holding discussions with relevant individuals.