Potentially, yes. In many cases, a lack of documentary evidence could mean that the claim is essentially one person’s word against another’s. This makes it a factual dispute and the courts will have to use their best efforts to try and determine who is right and who is wrong based on what they say and how they say it. To do so the courts have developed certain tests that would be applied to help them decide how much weight to attach to each side's evidence, such as:
· Demeanour - includes matters such as a person’s conduct, manner, bearing, behaviour, delivery and inflexion. They are matters of impression, which are not necessarily revealed by reading a transcript of evidence. It is the more 'personal' side of the individual providing the evidence
· Inconsistency – mainly to do with any apparent inconsistencies in a person’s evidence, especially after cross-examination
· Probability – this would ask of the evidence as a whole, or of a particular part of it: whose account is more probable in the circumstances?
So the courts will apply these or other similar tests in coming to a decision that they believe is most fair in the circumstances. That does not mean it is necessarily the right one, but the one which has been judged to be the fairest based on all available information.