Expert Witness Journal Dec 24 - Journal - Page 77
Encoding of Memories, Witness
and Documentary Evidence
An evolving approach to fact finding?
Jaffe & another -v- Greybull Capital LLP & others [2024] EWHC 2534 (Comm)
Mrs Justice Cockerill of the Commercial Court
recently decided a case in which there was a conflict
between witness evidence and a near-contemporaneous document. In resolving the issue, the Judge
grappled with a number of difficult issues around
what was referred to as “the science of memory” and how
that can impact the reliability of oral evidence and
even contemporaneous documents.
cases where there is often extensive disclosure to emphasise the
importance of the contemporary documents” and went on to
explain that cotemporaneous documents are “generally
regarded as far more reliable than the oral evidence of
witnesses”.
The Commercial Court decision
Cockerill J recognised that the near-contemporaneous note could be taken as the basis for a “compelling argument”, but that did not absolve the Court from
testing it against the facts in the full context. Although
there was a “fairly powerful “classic Gestmin” case to be
made”, that neglected the possibility of a faulty
impression or recollection being encoded in the
author’s memory at a very early stage and transferred
into the document.
The dispute related to alleged fraudulent
misrepresentations and involved a “clash of recollection”
between the evidence of two “patently honest and
truthful” witnesses over words spoken at an in-person
meeting some eight years previously. The evidence of
one of the witnesses was supported by a note prepared
by the same witness within a day of the meeting,
during which the misrepresentations were allegedly
made.
In reaching her decision, the Judge relied on
Popplewell LJ’s lecture to the Commercial Bar Association in November 2023, titled “Judging Truth from
Memory”. In particular, the Judge referenced those
parts of the lecture expanding on Gestmin and
dealing with the various factors that can lead to the
faulty encoding of memory, which apply equally to
contemporaneous documents:
The traditional approach – documentary evidence
trumps
The claimants relied on the classic and much quoted
passage from the judgment of the then Leggat J in
Gestmin SGPS SA -v- Credit Suisse (UK) Limited [2013]
EWHC 3560 (Comm). That passage - which often
guides the approach of the English courts and arbitral tribunals to the assessment of evidence - broadly
favours written contemporaneous records over witness evidence and recollection as being more reliable
or accurate.
“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”….
In Gestmin, Leggat J was tasked with assessing
evidence from various witnesses with regard to events
that took place over a number of years. Having
touched on some key lessons of a century of phycological research into the nature of memory and considered the unreliability of human memory, and the
value of witness evidence when assessed through
cross-examination, Leggat J concluded:
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.”
“… the best approach for a judge to adopt in the trial of a
commercial case is, in my view, to place little if any reliance at
all on witnesses’ recollections 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 … Above all, 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.”
After careful consideration of the evidence before the
Court, the Judge dismissed the claim finding that no
misrepresentations were made. There was a very
short distance between the representations alleged,
which would be false, and an accurate but potentially
ambiguous phrasing of the facts – and the near-contemporaneous note was “in the critical respect (entirely innocently) inaccurate”. In the Judge’s words:
“While the natural tendency is to imagine a note written up
later in the same day or the next morning is as good as a transcript the evidence on the fall off of memory in the immediate
aftermath of an event is clear and clearly collated in the speech
of Popplewell LJ.”
Cockerill J was also referred to the decision in Simetra
Global Assets Ltd -v- Ikon Finance Ltd [2019] EWCA Civ
1413. In that case, the Court of Appeal observed that
“it has become a commonplace of judgments in commercial
EXPERT WITNESS JOURNAL
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DECEMBER 2024
