A recent post dealt with issues relating to credibility in witness statements. Continuing with that theme it helps to look at the discussion of how witness recollection should be treated in Gestmin -v- Credit Suisse  EWHC 3560 (Comm) and subsequent cases. In particular how witness evidence is weighed against contemporary documentation. If you read the cases it is not difficult to assess which, on the whole, is preferred.
THE DISCUSSION IN GESTMIN: THE FALLIBILITY OF HUMAN MEMORY
Mr Justice Legatt was faced with a number of witnesses who gave evidence about a large number of issues over a considerable period of time. He observed:
“Evidence based on recollection
- An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.
- While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.
- Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).
- 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. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.
- The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.
- Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.
- It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.
- In the light of these considerations, 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. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. 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.
CONTEMPORARY DOCUMENTS PREFERRED: WATSON FARLEY & WILLIAMS -v- OSTROVIZKY
This approach was adopted by Mr Justice Silber in Watson Farley & Williams -v- Ostrovizky  EWHC 160 (QB).
“III. The Witnesses
- There are a number of factual issues which have to be resolved in this case and they relate to events and matters which occurred between four and six years ago. As one might expect, there have been many emails passing between the parties as well as many other relevant documents. Leggatt J stressed the obvious importance of documentary evidence in Gestmin SGPS S.A v Credit Suisse (UK) Limited and Credit Suisse Securities (Europe) Limited  EWHC 3560 ( Comm) when he observed that:-
” 22…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. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. 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.”
- At the time when the events which led to the present action occurred, those involved with them would have had no reason to believe, or even to suspect, that they would be or even might be questioned about them between four and six years later in a Court in November 2013. In those circumstances, the documentary evidence is especially important and therefore disclosure has been and is of great importance. Indeed not only does contemporaneous correspondence enable a Court to evaluate the evidence of witnesses especially those who produced the documents, but also it helps the witnesses to recall events.
- The comments of Leggatt J are particularly relevant in a case such as the present one in which, as I will explain, the Defendant’s side have not given full disclosure as they contend belatedly that documents can no longer be produced. Indeed, when further documents were brought to Court by Mr Simos, who was not a party to the action, it undermined aspects of the Defendant’s case. I will explain my views on the reliability of the evidence of the witnesses starting with those involved in the decision of the Defendant to invest in the PVs.”
WITNESS EVIDENCE AND COLD SORES: VIRULITE -v- VIRULITE
Similar considerations were mentioned in the judgment of Mr Justice Stuart-Smith in Virulite LLC -v- Virulite Distribution Ltd  EWHC 366 (QB):
Factual Background: Liability
- The central issue on liability is whether the effect of the DLA was modified by subsequent communications that were either oral or contained or evidenced in emails. Most of the witnesses of fact have an interest in the outcome of the litigation and have had a long time to consider their evidence. As explained in greater detail below, it is possible to trace shifts in the positions being adopted by the parties from time to time. I therefore approach the evidence of the witnesses bearing in mind the importance of the documentary evidence: see The Ocean Frost  1 Lloyd’s Rep 1 at 43 per Dunn LJ at 57 per Robert Goff LJ and the recent observations of Leggatt J in Gestmin SGPS S.A. v Credit Suisse  EWHC 3560 (Comm) at [15-24]. The Ocean Frost was a case involving allegations of fraud. No allegations of fraud are made in the present case, but the approach outlined by the Court of Appeal has general application when attempting to assess the reliability of witnesses of fact. I offer two additional observations in the light of these authorities. The first is that the nature of the documents that are being considered needs to be taken into account. At one end of the spectrum, formal contractual documents negotiated with the benefit of legal advice are given special primacy; but this case typically involves communications by email sent by business associates without prior vetting by lawyers and without attempting to achieve full precision or formality. I shall bear that in mind at all times, and particularly when assessing whether or not LLC has proved that a sufficient degree of certainty (contractual or otherwise) was achieved in late 2008/early 2009 so as to affect the position clearly set out in the DLA. The second is that if, having had due regard to all of the evidence (including relevant documentation), the Court considers that a witness’ evidence is reliable despite being in apparent conflict with other evidence, it should not shrink from making such a finding.
TESTING THE EVIDENCE AGAINST THE DOCUMENTS: EAST ENGLAND SCHOOLS -v- PALMER
The issue of the reliability of witness evidence was considered by Mr Richard Salter QC (sitting as a High Court Judge) in East Midlands School CIC -v- Palmer  EWHC 4138 (QB)
- The nature of this dispute was amplified and clarified in the evidence given before me. Although (as one might expect) there was a considerable degree of common ground in the descriptions given by all of the witnesses of how business is done by companies like 4myschools and Sugarman Education, there were some (at least apparent) conflicts in the relevant factual evidence which I must resolve.
- I therefore begin my consideration of that evidence by setting out my impressions of the witnesses. I have, of course, paid close attention to the demeanour of each witness when he or she has been giving their evidence. However, I must also test their evidence against all the other materials available to me. In that regard, I bear in mind the helpful observations of Robert Goff LJ (as he then was) in The Ocean Frost:
.. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth ..
SUMMARY: POINTS TO CONSIDER WHEN DRAFTING OR SCRUTINISING WITNESS STATEMENTS
- Is the statement consistent with other statements prepared by the witness, with documents and with other witnesses.
- Consistency is a key issue. Inconsistent statements are “a gift to any competent cross examiner”
- When drafting the statement consider issues of consistency, particularly with documents.
- Length is not always beneficial, particularly if is only reciting documents.
- Always examine a statement against other statements and contemporary documents. This makes the most effective means of cross-examination.