The post yesterday on the length of “skeleton” arguments and trial bundles was an appeal from a first instance decision where the judge had to decide which witnesses were credible. First instance decisions on the credibility of witnesses are difficult to challenge. The appeal (listed for three days took four hours). Issues relating to credibility of witnesses are central to the litigation process but seldom explored. A difficult issue of witness recollection and evidence was considered by H.H. Judge Gosnell in Kucukkoylu -v- Ozcan  EWHC 1972 (QB) the trial judge had to decide which witnesses were telling the truth.
GOING BACK TO CALDERO TRADING: THE APPROACH OF THE COURT TO DISPUTED WITNESS EVIDENCE
This was the first instance of the Court of Appeal discussed yesterday. In Caldero Trading -v- Beppler & Jacobson Ltd  EWHC 2391 (Ch) Richards J had to decide between two vastly different oral accounts of a contract.
“General approach of the court
- In the absence of any record of the terms agreed between Mr Becirovic and Mr Lazurenko, the court is faced with the difficult task of deciding which of them is telling the truth. I was reminded by counsel for both parties on guidance given by judges on the approach to be adopted in such cases. Perhaps the best known is that of Robert Goff LJ given in The Ocean Frost  1 Lloyds Rep 1 at 57:
“Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. 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, references to the witness’ motives and to the overall probabilities can be of very great assistance to a Judge in ascertaining the truth.”
- In this case, quite apart from the absence of any record of the agreement reached between the parties, there is precious little documentary evidence which bears at all on the issue. As will appear, there are really only a handful of documents on which each side has sought to place reliance. The accounts of BJUK do not assist. The only accounts prepared until May 2009 were for a dormant company. Accounts were prepared in May and July 2009 for each of the years ended 30 November 2003-2007. Those accounts, and the accounts for later years, are inconsistent with the cases of both parties.
- The general absence of documents has perhaps led to exaggerated reliance being placed on the few documents thought to be in point. This is therefore a case, more than most cases of a commercial type, which turns on the credibility of the two principal witnesses. Their lack of credibility in other important respects and the overall commercial probabilities may be factors of great importance.”
Kucukkoylu -v- Ozcan: WHO BOUGHT THE WINNING TICKET?
“The issues in this case are summed up in the opening paragraph.
“Overnight on 29th January 2012 the Defendant, Fatih Ozcan had a dream. In his dream he dreamt that he was holding a large bundle of cash and standing in front of him was the Claimant, Hayati Kucukkoylu, his employer. The Defendant is a strong believer in the power of dreams and interpreted this to mean that he and the Claimant would win the lottery. On 30th January 2012 a ticket was bought for the Euromillions Lottery which won the raffle prize of £1 million. Surprising though this history may be, it is not substantially disputed. What is disputed is who bought the ticket and who is entitled to the winning”
DECIDING WHICH ACCOUNT WAS CORRECT
This wasa case with very little documentary evidence. The judge had to determine which set of witnesses were telling the truth.Analysis
“40. This is a troubling case. Both counsel have agreed that the law is very straightforward and for the Defendant to succeed he would effectively have to prove that a contract existed with the Claimant for the purchase of a lottery ticket jointly and that the terms of the contract would give rise either expressly or impliedly to an equal share of the beneficial interest, in the form of the prize money. The case will turn on its facts and the standard of proof is on balance of probability. I have heard a number of witnesses give evidence over a period of six days. Cases are often easy to determine where one witness or group of witnesses are far more convincing than the other. This is not one of those cases. I have the choice between the Defendant and his witness who both concede that they have stated certain things to certain people in the past which they knew were untrue but now contend that that their current version represents the actual truth, and the Claimant and his witnesses who claim to have been truthful throughout but in fact appear less than truthful in the witness box. On occasions of course parties and their witnesses are tempted to bolster a truthful case by lies and exaggerations to make their case more convincing and that may well be happening in this case. It will be clear from my analysis of the evidence that there were number aspects that I was and remain dubious about. I intend to treat all the witnesses evidence with some caution as none of them were entirely convincing with the possible exception of Ms Pichykaranan whose evidence was marginal at best in terms of relevance.
41. I therefore need to search for some empirical evidence which is not dependent on witnesses’ oral evidence alone. The best examples of this are the CCTV footage and the play slips. Whilst the resolution on the footage is not the clearest there are certain conclusions I can reach as I result of watching the same. Firstly, I discount the Claimant’s evidence that his purpose in speaking to the Defendant and Bayram Eryilmazlar was to admonish them for some infraction the previous evening. The appearance was much more like his seeking advice from both of them (as they were experienced lottery players) how to fill in the play slips. It took the Claimant just over a minute and a half to complete his entries on the play slips. It then appeared to take the Defendant about ten seconds longer to play his part. The Claimant says that part of the reason the Defendant took so long was because a play slip had to be discarded when the Claimant entered too many numbers and also that the Defendant assisted the Claimant by going over the numbers he had completed to make them clearer. There was no sign on the CCTV of a slip being discarded and this piece of evidence, emerging as it did for the first time on the day of trial, was not credible. Similarly, the play slips do not reveal that anyone has gone over the entries to make them clearer. Again, the Claimant’s suggestion made for the first time on the day of trial that the play slips which the Defendant produced and were in the trial bundle were forgeries was not credible. Another element which adds weight to the Defendant’s case is that the person who has filled in Board A of both the Euromillions Draw and the Lotto has struck through the numbers with diagonal strikes whereas the person who has completed Board B of both games has done so with horizontal strikes. This suggests two different people completed the play slip. The appearance of the CCTV footage and examination of the play slips is consistent with the Defendant’s case that he chose the numbers on Board B of both games.
- The scene around the till is actually inconclusive. It does at least show that the Claimant made some contribution but it does not prove how much. It is clear that the Claimant handed over a number of coins (probably five) but as these could have been a combination of £2, £1 and 50p coins it could be consistent with a contribution of £4.50 as the Defendant says or £9.00 as the Claimant says. Neither party’s recollection in relation to this issue is reliable. The Defendant appears to have contended through his solicitors initially that the Claimant made no contribution to the purchase of the ticket, and by May 2013 in his amended Defence and Counterclaim he contended that he could not recall if the Claimant made a contribution. By the time he made his witness statement in August 2013 he had remembered that he had been paid £4.50 in coins but I wonder if this was after he had seen the CCTV footage. The Claimant for his part when interviewed by the police on 11th February 2012 when one would have thought his memory was at it freshest told them that he had given the Defendant £20 from the till for a total lottery ticket of £19.00. It seems to me that both the Claimant and Defendant have tailored their evidence on this issue having seen the CCTV footage. If the Claimant could not remember on 11th February 2012 how much he had paid over he is unlikely to have a better memory now.
- For the reasons I have indicated earlier Turan Mete and Feride Mehmedova could not have seen, heard or witnessed what they claim to have done and I discount their evidence on that issue entirely. Whilst Bayram Eryilmazlar may well have seen the handover of some money from Claimant to Defendant he cannot have seen how much was handed over and I discount his evidence on this topic. The footage of the Defendant’s return to the restaurant shows that he did not just hand over the tickets to the Claimant but that there was a conversation for about twenty seconds. This appears more consistent with the Defendant’s version of events where he relates a conversation he had with the Claimant about writing their names on the back of the ticket. If the Defendant had been merely running an errand for the Claimant with no real interest in the lottery ticket I might have expected him just to hand it over and carry on with his duties.
- The parties are at odds as to what happened on 8th February 2012 after the Claimant had discovered he had won the lottery. The Claimant says there was no real celebration and no real challenge from anyone about his win. The Defendant says that he asked to see the winning ticket and the Claimant denied the winning ticket had been jointly played, claiming a second ticket was the one he had played with the Claimant which had lost. Witnesses for both Claimant and Defendant confirm their respective version of events. On analysis I think that the Defendant’s version of events is more credible. The Claimant denies having played a further lottery ticket on the 29th January 2012 but when he was interviewed by the police on 11th February 2012 he claims to have spent £19.00 on lottery tickets that night. That is the exact sum which would be required for both the winning ticket and the five board losing ticket which Bayram Eryilmazlar says he bought for the Claimant. In addition the text messages are more consistent with a scene having occurred where the Claimant felt the Defendant had embarrassed him and shown him “like a fraudster in public”.
- The text messages as a whole tend to support the Claimant’s case however and the Defendant’s position is dependent on the court accepting that he was afraid of the Claimant. The Defendant pointed out that he depended on the Claimant for both his employment and his home and that the Claimant had access to the shared house by means of a key. I accept the Defendant’s evidence that the Claimant was angry with the Defendant after he questioned his lottery win in public and the content of much of the text exchange is consistent with that. The CCTV footage for 9th February 2012 shows what appears to be a friendly meeting but the Defendant claims he remained fearful of the Claimant’s reaction. The scene where the Defendant kisses the Claimant’s hand and embraces him is not consistent with a friendship but more a gesture of respect as is the use of the term “uncle”. My observations of the parties during the trial both whilst giving evidence and in court were helpful. The Claimant was correctly described by counsel for the Defendant as an “alpha male” and he appeared confident and somewhat dismissive of the Defendant. The Defendant on the other hand appeared more diffident and submissive. I am prepared to accept that the Defendant was fearful of the Claimant’s reaction when he was challenged. The fact that various other employees appeared to have taken it upon themselves to persuade the Defendant to drop his claim is also testament to the Claimant’s influence, as is the fact that they are prepared to come to court and support even the most unlikely elements of his evidence.
- At the end of the day the case comes down to a comparative assessment of the Claimant and Defendant as witnesses. Neither of them was particularly impressive. The Claimant was confident throughout but despite having the assistance of an interpreter had grave difficulty directly answering straightforward questions. It was however significant that the questions he had difficulty answering were those which called for an explanation where there was some inconsistency in his case. The introduction of new evidence about the discarding of the play slip , the forgery of the play slip and the new date of birth were all clearly efforts to deal with difficulties which had become evident to him in the run up to the trial and where wholly unconvincing as a result. The Defendant had the difficulty of dealing with the fact that he was an admitted liar in that he had told both Camelot and the Police that the ticket had been stolen. He also had to deal with the fact that he appeared to think initially that the Claimant had made no contribution to the ticket purchase when he then had to concede at a later stage that he had ( presumably after watching the CCTV footage). These were significant problems for his case but he at least attempted to deal with the questions head on. He contended that he had lied to Camelot and the police in desperation to prevent the Claimant stealing from him. He also claimed that he could not remember at first whether the Claimant had in fact made a contribution hence the change in his evidence. Whilst these explanations may not have been wholly convincing they at least were theoretically plausible whereas the Claimant’s tactic of avoiding answering the questions at all was wholly unhelpful.
- As I have concerns about the reliability of virtually all the witnesses’ evidence I am constrained to place more reliance on the evidence which cannot be manipulated. The play slips which I accept are genuine very strongly suggest that Boards A and B were played by two different people. The CCTV footage very strongly suggests that the Defendant was making selections of numbers himself rather than merely going over the Claimant’s numbers. These are both strongly supportive of the Defendant’s case. I also feel that the Defendant’s case is inherently more plausible. If the Claimant is right and the Defendant had a dream the previous night depicting the Claimant winning the lottery why would the Defendant spend approximately three hours (which a number of witnesses appear to accept) persuading the Claimant to play. There is no evidence to suggest they were particularly close prior to this incident. I cannot see why the Defendant would be so determined to make his employer play if he was not directly to benefit. It is much more likely that he would badger his employer for hours if his dream was that they had played together and he needed his employer to play for the dream to come true. It would also then be necessary for them both to choose numbers and both to contribute to the price of the ticket. Having weighed all of the evidence in the balance, and taking into account the strengths and weaknesses in both parties’ cases I find I prefer the evidence of the Defendant on the determinative issues.
- I make the following findings of fact on balance of probability. On the night of 29th /30th January 2012 the Defendant had a dream which involved him and the Claimant and a large sum of money. The Defendant pestered the Claimant into playing the lottery with him on the evening of 30th January 2012. The Claimant completed Board A of both games and the Defendant completed Board B choosing the Lucky Dip for Board C. The Defendant suggested and the Claimant agreed that they would play the game “50/50” or “half and half” or words to that effect. They both contributed equally to the purchase price of the ticket. The Defendant went to the shop to play the lottery and gave the Claimant the tickets, he retaining the receipt and the play slips. The Claimant discovered he had won on 8th February 2012 and the Defendant challenged him about the ticket later that evening. The Claimant became angry and threatening and swore at the Defendant. Subsequently, through intermediaries the Claimant attempted to persuade the Defendant to drop his claim.
- I find that the effect of these conversations was that the Claimant and Defendant entered into a contract to jointly play the lottery on an equal basis. I find that either it was a term of the contract that any winnings should be shared equally or alternatively that such a term should be implied. I find that this term represents the obvious, but unexpressed intention of the parties and that it is also necessary to give business efficacy to the contract. The whole point of playing the lottery jointly is to hopefully share the winnings jointly. The phrase “50/50” or “half and half” both of which the Defendant repeated several times in his evidence were clearly intended to convey an equal right to the beneficial interest in any winnings. It follows from my findings of both fact and law that the Defendant succeeds in this case. There should be a declaration that the prize money from this winning lottery ticket should be shared equally between the Claimant and the Defendant.”
THE RELEVANCE OF THESE ISSUES FOR ALL LITIGATORS
Advising on “credibility” and which witnesses evidence is likely to be accepted is one of the most challenging aspect of the litigation process. There are a few things to note:
Credibility is not the same as honesty
This is because witnesses can easily convince themselves that their recollection of events is true. This is particularly so when their recollection suits their interests. However it does not mean that they are consciously lying. A detailed discussion of this issue took place in
Gestmin -v- Credit Suisse  EWHC 3560 (Comm) where 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.
The “truthful”party can tell lies too
That was part of the analysis of Judge Gosnell in the Kuckkoylu case
On occasions of course parties and their witnesses are tempted to bolster a truthful case by lies and exaggerations to make their case more convincing and that may well be happening in this case.
The courts will look for external factors to assist
Lord Goff in Grace Shipping v. Sharp & Co  1 Lloyd’s Law Rep. 207 at 215-6 is also helpful:.
“And it is not to be forgotten that, in the present case, the Judge was faced with the task of assessing the evidence of witnesses about telephone conversations which had taken place over five years before. In such a case, memories may very well be unreliable; and it is of crucial importance for the Judge to have regard to the contemporary documents and to the overall probabilities. In this connection, their Lordships wish to endorse a passage from a judgment of one of their number in Armagas Ltd v. Mundogas S.A. (The Ocean Frost),  1 Lloyd’s Rep. 1, when he said at p. 57:-
“Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. 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.” [emphases added].
That observation is, in their Lordships’ opinion, equally apposite in a case where the evidence of the witnesses is likely to be unreliable; and it is to be remembered that in commercial cases, such as the present, there is usually a substantial body of contemporary documentary evidence.”
In that context he was impressed by a witness described in the following terms.
“Although like the other main witnesses his evidence was a mixture of reconstruction and original recollection, he took considerable trouble to distinguish precisely between the two, to an extent which I found convincing and reliable.”
That is so important, and so infrequently done.”
Look at that last phrase: “took considerable trouble” to distinguish between reconstruction and original recollection.
An important, if not essential, point to bear in mind when drafting a witness statement.
OTHER POSTS ABOUT WITNESS EVIDENCE AND CREDIBILITY