Expert Witness Journal Dec 24 - Journal - Page 60
HHJ Tindal then turned to the potential challenges of
simply relying on contemporary documents.
“Human memory:
l is not a simple mental record of a witnessed event that is
fixed at the time of the experience and fades over time, but
l Paucity – despite a proliferation of documents in
many modern commercial cases, some key conversations may simply not be recorded so there is no document against which to test a witness’s version of events.
For example, the £14m question in Blue v Ashley (also,
incidentally, a judgment of Leggatt J, but with a very
different universe of documents from Gestmin) turned
on conflicting recollections of a conversation over an
evening of drinks in the Horse & Groom pub.
l is a fluid and malleable state of perception concerning an
individual’s past experiences, and therefore
l is vulnerable to being altered by a range of influences,
such that the individual may or may not be conscious of the
alteration.”
In light of that understanding, the PD contains
injunctions designed to minimise the extent to which
the civil litigation procedure intrudes upon and interferes with a witness’s memory, and to allow the
court to assess that memory. For example:
l Ambivalence – even where contemporaneous documents exist, they may be “ambivalent or otherwise
insufficiently helpful” to the particular issue in dispute.
l a reminder that witness evidence should be
l Deceptiveness – at worst though, a contemporane-
restricted to matters they witnessed personally (i.e. it
was experienced by one of their primary senses or it
was a matter internal to their mind);
ous document may be “deceptive at face value, deliberately misleading or even forged” – as was the case in
this re-trial.
l caution should be exercised before showing
witnesses documents that they did not see at the time
of the events in dispute;
In the circumstances of this case, the judge found the
judicial fact-finding exercise could not be as simple as
to rely on the documents, but would have to involve a
mixture of techniques including “reference to the objective facts and documents, to the witnesses’ motives
and recollections, and to the overall probabilities”. In
each case, the judge will need to adopt a suitable mix
along the spectrum from Gestmin (primacy of
documents) to Blue (paucity of documents).
l the drafting of a witness statement should start with
a witness interview and involve as few drafts as possible, as repeatedly revising a statement may corrupt
rather than improve recollection; and
l on important disputed matters of fact, the witness
should state how well they recall the matters concerned and state whether and how they have refreshed their memory (e.g. identifying any documents
they have looked at).
Jaffe v Greybull [2024] EWHC 2534 (Comm) was another recent case at the Blue end of the spectrum, involving “a clash of recollection between two sets of
witnesses as to the content of oral statements made at
an in-person meeting some years ago”, in which the
judge was required “to decide, as between the evidence of two equally patently honest and truthful witnesses, which of their recollections is to be preferred”.
Deceptive Documents
In two more recent cases though, the accepted
wisdom that contemporaneous documents may be
preferred to witness recollection has been tempered.
In Takhar v Gracefield [2024] EWHC 1714 (Ch), HHJ
Tindal had the unenviable task of sitting on a retrial of
a matter originally tried in the High Court 14 years
earlier, before it was appealed to the Supreme Court
and the judgment set aside for having been obtained
by fraud. The resulting 300+ page retrial judgment
contains a fascinating discussion of how to weigh the
evidence in a “perfect storm of challenges” where:
Refreshingly, the witnesses agreed that their
unrefreshed memories were either non-existent or
unreliable, and the parties were well-versed in the
principles espoused in Gestmin, Simetra and Avonwick –
all of which extol, in different ways, the virtues of
reliance on documents over memory.
Mrs Justice Cockerill DBE also however referred the
parties to Popplewell LJ’s 2023 lecture “Judging Truth
from Memory” (also cited by HHJ Tindal in Takhar)
which, while surveying developments in scientific and
judicial thinking since Gestmin, suggests that “recollection has perhaps become undervalued in contrast to
the increasing primacy attached to contemporaneous
documents”, but notes that contemporaneous
documentation is potentially vulnerable to the same
infections as memory:
l the witnesses would be giving evidence about events
that were now nearly 20 years in the past; and
l their memories were also liable to have been
distorted by years of almost constant (pre-PD57AC)
litigation; but
l the Gestmin wisdom of preferring the contemporaneous documents was problematic given that this retrial had been necessary because a key document in
the original trial was subsequently found to have been
forged.
“[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… it infects the so called
contemporaneous record”.
After quoting the now-orthodox passages from
Gestmin, HHJ Tindal went on to consider both its
precedents and antecedents, including modern understanding of how memories are encoded, stored
and retrieved, and their impact on assessing witness
evidence.
EXPERT WITNESS JOURNAL
“Contemporaneity” of the documents, says Popplewell
LJ, “does not necessarily confer primacy or accuracy”
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DECEMBER 2024
