Expert Witness Journal Dec 24 - Journal - Page 61
While the Claimants urged the judge to rely on the
documentary evidence (in this case a “fairly speedy
writing up of contemporaneous notes”) to resolve the
difference of recollection, the judge was more
circumspect:
Conclusion
Do these recent cases and lectures suggest a
rebalancing in modes of judicial fact-finding? Lord
Justice Popplewell certainly argues for a reconsideration of “the extent to which contemporaneous documents and inherent probabilities are treated as
assuming almost exclusive primacy over recollections”.
But ultimately a range of tools is likely to be appropriate and necessary to cater to the wide variety of
commercial cases and the particular evidential challenges they present.
“that is an argument which… neglects to take into account
the possibility… of a faulty impression or recollection being
encoded at a very early stage and recorded in that document.
Ultimately therefore the document can be taken as the basis
for a compelling argument; but it itself must be tested against
the facts in the full context.”
After looking at that full context, the judge concluded
that the meeting note she had been urged to rely on
was (entirely innocently) inaccurate. The witness was,
she said:
So, in the spirit of PD57AC, have I been to a property
auction? Yes, but I have virtually no recollection of it,
and was unaware until I refreshed my memory from
an attendance note.
“reconstructing what was said in his second language from
handwritten notes which were necessarily incomplete. The
Note is not [a] live transcription… It is a reinterpretation of
his manuscript notes which he took at the time… It is likely
that coming to the meeting with [the party’s] discussed agenda
in his mind [the witness] encoded and interpreted what was
said in a way which deviated slightly but significantly from
what was said and that in recording his recollections that small
but significant deviation from memory became entrenched.”
About the author
Christopher Richards
www.gowlingwlg.com/en-gb/people/christopher-richards
Chris is a Knowledge Lawyer at Gowling WLG,
supporting the firm's wide-ranging dispute resolution
practice. Before becoming a Knowledge Lawyer,
he practised in commercial litigation, professional
negligence and international arbitration.
www.loupedin.blog
If you require an expert call the Expert Witness
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Medico-legal assessments for suspected or known brain injury and/or
brain dysfunction in Personal Injury and Medical Negligence claims
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EXPERT WITNESS JOURNAL
59
DECEMBER 2024
