Expert Witness Journal Dec 24 - Journal - Page 78
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Where does this leave documentary evidence as the
pinnacle of factual accuracy?
The Judge’s departure from the ‘classic’ approach
acknowledges that memory can contain both objective
reality and subjective perception. It strays from the
stance that contemporaneous documentary evidence
is the best means of getting to the truth, or that it can
provide a shortcut to fact finding, and it reinforces the
importance of assessing all manner of evidence with
an equal level of scrutiny and in their full context.
Authors
Harris Kouppas
Legal Director
Hill Dickinson International, Piraeus
As the Court of Appeal observed in Kogan -v- Martin
[2019] EWCA Civ 1645, Gestmin is not to be taken as
laying down any general principle for the assessment
of evidence; the Court’s function is to make findings of
facts based on all available evidence and awareness of
the fallibility of memory does not relieve judges of that
function.
Kleopatra Diamanti
Senior Associate
Hill Dickinson International, Piraeus
www.hilldickinson.com/
Whether, and to what extent, the judgment will
influence the way in which the English courts and arbitral tribunals approach documentary and witness
evidence, or the submissions before them, remains to
be seen.
In this regard, the Practice Direction on Trial Witness
Statements (PD 57AC) is also relevant.
PD 57AC
This has been in force for over three years. Among
other things, it:
1. Explains that when assessing witness evidence, the
Court is alive to the fact that human memory is not
fixed at the time of experience and fades over time. It
is a combination of one’s past experiences and
perception and, as such, vulnerable to alteration,
whether conscious or not.
This article was originally published by Hill Dickinson
on 29 October 2024
Dr Behrouz Nabavi
2. Contemplates that witnesses will be shown contemporaneous documents “to refresh their memory”.
General Adult Psychiatrist & Liaison Psychiatrist
MD, MSc, FRCPsych, Section 12 Approved Doctor
Medical Director, Priory Hospital Barnt Green
Medical Director, Premier TMS Birmingham
Honorary Lecturer at Aston Medical School
To a certain extent, this appears to echo the approach
in Gestmin: contemporaneous documents may be used
to ‘cure’ the fallibility of human memory. Indeed, in a
decision published shortly after PD57 AC came into
effect, the Court stated that if the witnesses did not
wish to refresh their memory from the substantial
body of contemporaneous documents, their evidence
was far less likely to be reliable than otherwise.
Following over 20 years of working within the NHS, Dr Nabavi has taken on a new
challenge working as a full-time substantive consultant psychiatrist and the medical
director for Priory Group since November 2020.
He has extensive experience in the diagnosis and treatment of patients with mental
disorders such as Depression, Paranoid Schizophrenia, Bipolar Afective Disorder,
Posttraumatic Stress Disorder, Anxiety Disorders, Adult ADHD, Autistic Spectrum
Disorder (Asperger9s Disorder) and Personality Disorders.
He has provided several hundred independent psychiatric reports for the Criminal and
Civil Courts since 2006.
However, as the decision of Cockerill J makes clear,
near contemporaneous documents run the risk of
containing the same errors and biases as witness evidence. Seeking, therefore, to refresh a witness’s memory through contemporaneous documents might
equally lead to uncertainties and inaccuracies.
Within criminal cases this includes the diagnosis of mental disorder, otness to plead
and stand trial, disposal, psychiatric (insanity) defence, risk assessment and sentencing
(disposal) recommendations.
He also prepares reports within civil cases, where there is a need to assess mental disorder
occurring after personal injury or trauma, including 8historical sexual abuse9.
Dr Nabavi9s other areas of interests include, Child Protection Proceedings (parental
assessment), Immigration, Extradition and Testamentary Capacity.
Dr Nabavi is able to assess the clients across the UK or in his consulting rooms in
Birmingham. He is also able to ofer virtual assessments.
Comment
Assessing the evidence in complex commercial
litigation is a challenging exercise. The judgment
serves as a reminder that the Court has to consider
the evidence as a whole, not taking the contents of
contemporaneous documents at face value, particularly if they contradict factual witness evidence or
other available evidence.
EXPERT WITNESS JOURNAL
Dr Nabavi9s aim is to provide prompt and thorough reports to the highest professional
standards. On average, he completes the reports within two-four weeks. However, he
would also consider urgent requests.
Tel: 0300 030 1103 - Email: info@psychiatrist-medicolegal.co.uk
site: www.psychiatrist-medicolegal.co.uk
NRBS Consultant Limited, PO BOX 17254, Birmingham, B16 6US
76
DECEMBER 2024
