Expert Witness Journal Dec 24 - Journal - Page 65
affected by the schema at the time of retrieval, which
may be different from that which applied at the time
of the events in question… . As Leggatt J said in Gestmin ‘Memory is especially unreliable when it comes to
recalling past beliefs. Our memories of past beliefs
are revised to make them more consistent with our
present beliefs’.
the script and would not have been flustered into
saying an untruth if he had been questioned on the
point. And, finally, due to the ambiguity of Greybull’s
technically accurate description of the source of the
funds, and Wirecard’s view prior to the meeting that
Boeing was the source of the funds, it is easy to see
where the (entirely innocent) inaccuracy arose in the
summary note produced by Wirecard the following
day.
l 52. Further, encoding is often influenced by pride or
wishful thinking. It is a common, although not universal, human tendency to want to portray our participation in events in a way which paints us in the best
light. … it can also infect how witnesses pictures events
to themselves when first encoding the memory.
Takeaway
Parties and practitioners should take note of the
English courts’ developing interest in and application
of the science of memory. Instead of simply asserting
what a witness remembers of events, it is necessary to
look at the full context in which that memory has been
encoded to anticipate and address any questions as to
faulty encoding. Further, it should not be assumed
that contemporaneous documents will trump all other
evidence – in respect of key documents, the courts are
increasingly likely to examine the circumstances of
their production and whether they may have been
infected by faulty encoding of a memory.
l 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.
l 66. One [other issue] is reconstruction from semantic memory. We assume that something happened because that is what we would expect to have happened.
… our memories fill in gaps by reference to what we
assume we would have done or would not have done.
The witness will respond in cross-examination that
they are sure that something did not occur because ‘I
would never have done that’, or vice versa.
References
[1] [2024] EWHC 2534
[2] [2013] EWHC 3560 (Comm)
Contributors
Alex Radcliffe
Bio // aradcliffe@cooley.com
l 67. The dangers here are several: things do not always happen as we expect them to, and may not have
done so on this occasion. We are also applying our
present semantic memory schema to our attitudes at
a different time. A third is another common source of
erroneous recollection, in my experience, which is,
again, pride or wishful thinking. We like to suppose
that we did or thought that which we now consider
we ought to have done or thought.
The judge suggested that one way to deal with the
inherent unreliability of memory would be to say that
the documentary record – i.e., the summary of the
meeting produced by an attendee from Wirecard –
trumped other sources. However, that would fail to
take into account the possibility of a faulty impression
or recollection being encoded at a very early stage and
recorded in that document. She explained that while
the document could be taken as a basis for a compelling argument, it must be tested against the facts in
the full context: What was common to both parties in
terms of knowledge and what (if anything) the parties
were each focussing on which did not get communicated to the other side, which might affect both encoding and recording or how the Greybull
representative may have expressed himself.
Medico legal assessment of
claimants suffering traumatic brain
injury and psychological injury
arising from accidents and clinical
negligence.
Consulting rooms: London,
Birmingham, Exeter, Thames
Valley, Bristol & Manchester.
Co-editor and Author of Brain
Injury Claims, published by
Sweet and Maxwell.
Ultimately, the judge concluded on the balance of
probabilities that the misrepresentation was not made.
She considered that the issue of the source of funds
was not the main focus of interest and, therefore,
would not have taken up much time in the meeting or
been examined closely. She determined that the Greybull representative likely would have stuck closely to
EXPERT WITNESS JOURNAL
63
DECEMBER 2024
