Recollection, records and reasoning: Witness credibility in civil litigation

The facts in Tosh

The case of Tosh v Gupta [2025] concerned a clinical negligence claim brought by Julia Tosh against Vivek Gupta, a consultant colorectal surgeon. The Claimant, aged 52 at the time, was referred to the defendant for investigation of rectal bleeding. Following consultations and a flexible sigmoidoscopy, the defendant diagnosed Grade 2/3 haemorrhoids and recommended a ligasure haemorrhoidectomy, which was performed on 13 June 2019.

Unfortunately, the surgery resulted in a rare and serious complication which caused severe and lasting bowel symptoms. The original allegations of negligent surgical technique were dropped after expert agreement. The remaining claims focused on whether the defendant had:

• Incorrectly graded the haemorrhoids.
• Failed to offer non-surgical alternatives.
• Failed to adequately explain the risks of surgery.

The defendant denied negligence and maintained that his grading and advice were appropriate, and that the claimant had been properly advised.

Credibility and informed consent

The Claimant’s case was that if she had received proper information then she would have chosen a more conservative approach and avoided surgery, thereby also avoiding the lifelong complications that ultimately occurred.

The Defendant indicated he had some recollection of the Claimant, but his evidence was ultimately based on what his standard practices were. Therefore the Defendant’s evidence was based on what he “would have done”. As the court readily identified in Tosh, this evidence is inherently less persuasive than “I did”. This is a situation that will be familiar to many practitioners in civil litigation.

Case law

A leading authority on assessing witness credibility remains Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3650 (Comm), where Leggatt J cautioned against placing undue weight on confident recollections. He emphasised that oral testimony is not without value, but its strength lies in how cross-examination can test the documentary record and reveal the witness’s personality, motivations, and working practices. Crucially, Leggatt J warned against assuming that a confident and honest witness necessarily provides a reliable account of events. 

Similarly, in R (Dutta) v GMC [2020] EWHC 1974 (Admin) it was determined that it was an error for the tribunal to consider the issue of witness credibility in isolation from the documents, and that the correct approach was to determine the objective facts from the other available evidence, and then to consider the credibility of a witness in light of those determined facts. 

This approach was also endorsed by Lord Goff of Chiveley in Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd's Rep 1:

I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective fact proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities.

Lord Goff’s guidance in the later case of Grace Shipping v Sharp & Co [1987] 1 Lloyd's Rep 207 is also highly pertinent in assessing the weight to give to particular documents:

In many cases, letters or minutes written well before there was any breath of dispute between parties may throw a very clear light on their knowledge and intentions at a particular time.

The outcome in Tosh

Despite the lack of specific recollection, the judge found the defendant’s evidence credible and consistent with accepted medical standards:

• The defendant’s clinic letters, although brief, were contemporaneous and considered reliable.
• His body of work spoke to a significant level of experience in relation to these procedures.
• The grading of haemorrhoids and the consent process were found to be in line with professional norms and supported by documentation (e.g. EIDO leaflet, consent form).
• The contemporaneous documentation supported the case on the nature of his standard procedures.

By comparison, the judge found the Claimant to be an honest but ultimately unreliable historian. The events in question had occurred six years before the trial, and her recollection was affected by the passage of time, hindsight bias and her awareness of the litigation, and an appreciation of the importance of certain factors within her evidence.

The Claimant’s case was particularly undermined by discrepancies in the medical records and implausible claims regarding their interpretation. Importantly, she had written a very detailed complaint letter to the Defendant prior to litigation and failed to mention any concerns regarding informed consent.

Takeaways

Practitioners should bear in mind the following key principles when assessing witness credibility in civil litigation:

1. Contextual Credibility Assessment: Credibility must be evaluated in light of the specific facts and circumstances of each case. There are no fixed rules and judicial findings will always be fact-sensitive.
2. Limitations of Human Memory: Routine tasks are often poorly remembered, even by diligent professionals. Conversely, claimants may assert superior recollection due to the personal impact of events, but this can be distorted by hindsight bias or motivated reasoning.
3. Confidence ≠ Accuracy: A confident witness is not necessarily a reliable one. Confidence may reflect presentation style rather than factual accuracy, and even honest witnesses can be mistaken.
4. Documentary Evidence is Crucial: Contemporaneous records often provide the most reliable insight. These should be scrutinised closely and used to test the plausibility of oral testimony.
5. Holistic Evaluation Required: Courts favour a comprehensive approach—assessing not just what was said, but how it aligns with documents, context, and the witness’s motivations and state of mind.