Expert Witness Journal Dec 24 - Journal - Page 64
(Truthful) Recollections May
Vary: How English Courts Judge
Truth From Memory
The judgment in Jaffé & Another v. Greybull Capital LLP & Others [1] gives an excellent
insight into how the English courts are grappling with issues arising from the fallibility of
memory.
the matter on the basis of an assessment of the
credibility of the witnesses – what was required was a
much deeper analysis, taking into account the science
of memory.
Background
The case concerned an allegation that the claimants,
Wirecard, were induced to provide banking services
to Monarch Airlines by a fraudulent misrepresentation made by Monarch’s majority shareholder, Greybull. The misrepresentation concerned the source of
a $165 million injection of funds into Monarch. The
vast majority of the funds had ultimately come from
Boeing by way of an agreement that Monarch would
purchase 30 Boeing aircraft, Boeing would pay Greybull $132 million, which Greybull would use to fund
Monarch and Boeing would recoup by increased aircraft sale and leaseback prices. Boeing insisted that the
terms of the deal be kept confidential.
Unsurprisingly, reference was made to the judgment
in Gestmin SGPS SA v. Credit Suisse (UK) Limited[2],
in which Mr Justice Leggatt (as he then was) famously
suggested that ‘the best approach for a judge to adopt
in the trial of a commercial case is … to place little if
any reliance at all on witnesses’ recollection 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’. The
value of witness evidence instead lies largely in the opportunity to ‘subject the documentary record to critical scrutiny and to gauge the personality, motivations
and working practices of a witness’. And finally, ‘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.’
Wirecard alleged that Greybull had told them at a
meeting in October 2016 that it was itself the source of
the funds and had denied that Boeing had provided
funds. One of the attendees from Wirecard had taken
a manuscript note of the meeting, which he wrote up
in a summary the next day. That summary contained
the following: “Boeing did not contribute capital to
Monarch or provide capital to [Greybull] in any way.
The capital placed by [Greybull] is derived entirely
from the assets of Greybull’s owners.”
Notably, the judge then turned to the lecture given by
Lord Justice Popplewell – ‘Judging Truth from Memory’. She noted that she had drawn the parties’ attention to ‘the important lecture’, from which she quoted
the following as being of particular interest:
The defendants said that no such representation was
made, and that Greybull had stuck to a script prepared before the meeting. That script included the
following: “Despite confusing press reports, Boeing
have not provided equity or loans to Monarch. [If
pushed for more clarity] Boeing have provided backstop financing in the unlikely event the [sales and
leaseback] market was not available as and when
required.”
l 10. …determining what happened is not the only
task. Commercial litigation often involves an inquiry
into a witness’ state of mind. That state of mind may
be an essential ingredient of the cause of action, as for
example where claims are framed in constructive
trust. But more generally, it matters what the witness
knew, or believed, or was thinking or intended at a
particular point in the narrative of events because that
casts light on the events themselves. Fact-finding is
concerned not only with what happened, but just as
much with why it happened.
One of the key factual issues for the court to
determine was whether the representation had been
made as alleged by the claimants.
High Court’s judgment on whether representation
was made
The judge started her analysis by noting that nearly
eight years had passed since the meeting in issue and
that there was, therefore, an obvious point about the
reliability of recollection. She considered that the key
witnesses on both sides were honest and truthful, stating ‘I have no doubt the individual witnesses’ truths –
in the sense of what they either do (now) recall or what
they honestly think they recall – are simply different’.
So, this was not a case where the court could resolve
EXPERT WITNESS JOURNAL
l 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’.
l 40. The semantic memory can also corrupt a
recollection by affecting it at the retrieval stage. Our
beliefs, attitudes and approach, our worldview, our
schema, changes over time. The recollection is
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DECEMBER 2024
