UK – Encoding Of Memories, Witness And Documentary Evidence An Evolving Approach To Fact Finding?
Jaffe & another -v- Greybull Capital LLP & others [2024] EWHC 2534 (Comm)
Mrs Justice Cockerill of the Commercial Court recently decided a case in which there was a conflict between witness evidence and a near-contemporaneous document. In resolving the issue, the Judge grappled with a number of difficult issues around what was referred to as “the science of memory” and how that can impact the reliability of oral evidence and even contemporaneous documents.
The dispute related to alleged fraudulent misrepresentations and involved a “clash of recollection” between the evidence of two “patently honest and truthful” witnesses over words spoken at an in-person meeting some eight years previously. The evidence of one of the witnesses was supported by a note prepared by the same witness within a day of the meeting, during which the misrepresentations were allegedly made.
The traditional approach – documentary evidence trumps
The claimants relied on the classic and much quoted passage from the judgment of the then Leggat J in Gestmin SGPS SA -v- Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm). That passage – which often guides the approach of the English courts and arbitral tribunals to the assessment of evidence – broadly favours written contemporaneous records over witness evidence and recollection as being more reliable or accurate.
In Gestmin, Leggat J was tasked with assessing evidence from various witnesses with regard to events that took place over a number of years. Having touched on some key lessons of a century of phycological research into the nature of memory and considered the unreliability of human memory, and the value of witness evidence when assessed through cross-examination, Leggat J concluded:
“… 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 … 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.”
Cockerill J was also referred to the decision in Simetra Global Assets Ltd -v- Ikon Finance Ltd [2019] EWCA Civ 1413. In that case, the Court of Appeal observed that “it has become a commonplace of judgments in commercial cases where there is often extensive disclosure to emphasise the importance of the contemporary documents” and went on to explain that cotemporaneous documents are “generally regarded as far more reliable than the oral evidence of witnesses”.
The Commercial Court decision
Cockerill J recognised that the near-contemporaneous note could be taken as the basis for a “compelling argument”, but that did not absolve the Court from testing it against the facts in the full context. Although there was a “fairly powerful “classic Gestmin” case to be made”, that neglected the possibility of a faulty impression or recollection being encoded in the author’s memory at a very early stage and transferred into the document.
In reaching her decision, the Judge relied on Popplewell LJ’s lecture to the Commercial Bar Association in November 2023, titled “Judging Truth from Memory”. In particular, the Judge referenced those parts of the lecture expanding on Gestmin and dealing with the various factors that can lead to the faulty encoding of memory, which apply equally to contemporaneous documents:
“36. …When we encode our memories we don’t photograph what is happening; we interpret what is happening, and that interpretation uses our schema. … So experience and expertise can make a big difference to what goes into our memory…. “We don’t see things as they are, but as we are”….
55. … contemporaneous documents… may be produced near the time, but they are produced after the memory has been encoded, and if there is an encoding fallibility, which there may be for all these different reasons, it infects the so called contemporaneous record every bit as much as other reasons for the fallibility of recollection which affect it at the storage and retrieval stage.”
After careful consideration of the evidence before the Court, the Judge dismissed the claim finding that no misrepresentations were made. There was a very short distance between the representations alleged, which would be false, and an accurate but potentially ambiguous phrasing of the facts – and the near-contemporaneous note was “in the critical respect (entirely innocently) inaccurate”. In the Judge’s words:
“While the natural tendency is to imagine a note written up later in the same day or the next morning is as good as a transcript the evidence on the fall off of memory in the immediate aftermath of an event is clear and clearly collated in the speech of Popplewell LJ.”
Where does this leave documentary evidence as the pinnacle of factual accuracy?
The Judge’s departure from the ‘classic’ approach acknowledges that memory can contain both objective reality and subjective perception. It strays from the stance that contemporaneous documentary evidence is the best means of getting to the truth, or that it can provide a shortcut to fact finding, and it reinforces the importance of assessing all manner of evidence with an equal level of scrutiny and in their full context.
As the Court of Appeal observed in Kogan -v- Martin [2019] EWCA Civ 1645, Gestmin is not to be taken as laying down any general principle for the assessment of evidence; the Court’s function is to make findings of facts based on all available evidence and awareness of the fallibility of memory does not relieve judges of that function.
Whether, and to what extent, the judgment will influence the way in which the English courts and arbitral tribunals approach documentary and witness evidence, or the submissions before them, remains to be seen.
In this regard, the Practice Direction on Trial Witness Statements (PD 57AC) is also relevant.
PD 57AC
This has been in force for over three years. Among other things, it:
- Explains that when assessing witness evidence, the Court is alive to the fact that human memory is not fixed at the time of experience and fades over time. It is a combination of one’s past experiences and perception and, as such, vulnerable to alteration, whether conscious or not.
- Contemplates that witnesses will be shown contemporaneous documents “to refresh their memory”.
To a certain extent, this appears to echo the approach in Gestmin: contemporaneous documents may be used to ‘cure’ the fallibility of human memory. Indeed, in a decision published shortly after PD57 AC came into effect, the Court stated that if the witnesses did not wish to refresh their memory from the substantial body of contemporaneous documents, their evidence was far less likely to be reliable than otherwise.
However, as the decision of Cockerill J makes clear, near contemporaneous documents run the risk of containing the same errors and biases as witness evidence. Seeking, therefore, to refresh a witness’s memory through contemporaneous documents might equally lead to uncertainties and inaccuracies.
Comment
Assessing the evidence in complex commercial litigation is a challenging exercise. The judgment serves as a reminder that the Court has to consider the evidence as a whole, not taking the contents of contemporaneous documents at face value, particularly if they contradict factual witness evidence or other available evidence.
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