Expert Witness Journal Dec 24 - Journal - Page 59
If I Recall Correctly… Malleable
Memory and Deceptive Documents
Have you ever been to a property auction?
No, me neither. I’d be terrified of letting my intrusive thoughts in and accidentally walking away
with a financially ruinous doer-upper.
At least that’s what I would have said until a few weeks
ago. Not because that’s when I started my side-hustle
as a clueless property developer, ripping out period
features for rage-bait social media clicks. It’s when a
colleague reminded me that I had in fact, many years
ago, attended a commercial property auction for a
client matter.
events which occurred several years ago is the unreliability of human memory”. Opining that the legal system, while cognisant of this, had not sufficiently
absorbed the lessons of a century of psychological research, he went on to enunciate some key principles,
viz:
l We believe our memories to be more faithful than
they are
Until the very second before I was reminded of this, I
would happily and confidently have testified that I
had never been to an auction – I think I’d remember
that! But it was hard to deny when my better-informed colleague was brandishing my own attendance note of the event. The experience clearly hadn’t
left a lasting impression on me.
l A strong or vivid memory, or confidence in it, is no
guarantee of its accuracy
l Human memories are not fixed and fading over
time; but constantly retrieved and rewritten
l Our memories of our past beliefs are especially
vulnerable, as we unconsciously revise them to be
consistent with our current beliefs
Imagine my mixed feelings. On the one hand, any
delusion I had harboured that I would, if ever called
upon, be someone a judge would describe as a ‘careful and reliable witness who gave every impression of
trying to assist the court’ suddenly evaporated like a
cartoon dream, punctured by self-doubt. On the other
though, the (tragic) Knowledge Lawyer in me delighted in having been gifted a real-life example with
which to illustrate the fallibility of memory that underpins Civil Procedure Rule Practice Direction
57AC…
l The process of litigation is itself liable to interfere
with and corrupt memory
l In light of the foregoing, a commercial judge should
“place little if any reliance on witnesses’ recollections of
what was said in meeting and conversations, and to
base factual findings on inferences drawn from the
documentary evidence and known or probable facts”.
Practice Direction 57AC
In April 2021, the understanding expressed in Gestmin
was enshrined in a new Practice Direction 57AC,
governing witness evidence for trials in the Business &
Property Courts in England & Wales. Key principles
from that PD and its associated statement of best
practice include recognition that:
Primacy of the paperwork
In his now famous judgment in Gestmin v Credit Suisse
[2013] EWHC 3560 (Comm), Leggatt J (as he then
was) observed that “an obvious difficulty which affects
allegations and oral evidence based on recollections of
EXPERT WITNESS JOURNAL
57
DECEMBER 2024
