ASSESSING THE CREDIBILITY OF A WITNESS: IT IS A MATTER OF COMMUNICATIONS

The judgment of HH Judge Brown QC in Mainline Digital Communications Ltd -v- Chaddah [2015] EWHC 1580 (QB) is an important illustration of the manner in which a judge assesses the credibility of a witness.

In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility.”

THE CASE

The claimant was bringing an action against one of its former dealers for cumulative breaches of contract. The defendant counterclaimed for wrongful termination of the contracts.

THE DOCUMENTARY EVIDENCE

One of the allegations was that the defendant had been rude to customers.

  1. In the afternoon of Tuesday 13th November 2012, Mr Chaddah sent a barrage of 26 texts to Mr Parkhurst over a period of two and quarter hours i.e. one every five minutes. This was followed the next afternoon (after Mr Parkhurst had already complained to Orange as he had indicated to Mr Chaddah he would) by a further 11 over a period of two and a third hours i.e. one every 12 minutes.
  2. Individually, the Claimants submit that 10 of these are rude, threatening and abusive in particular:

a. ‘I will personally make you receive the maximum amount of charges possible, have a nice day won’t you’

b. ‘WHAT DON’T YOU UNDERSTAND … ‘

c. ‘… you are trying to avoid paying with these immature tactics … you either pay this or we send it to the recovery team where the charges will be higher and you will have adverse credit against your name for up to 5 years’

d. ‘You don’t get it do you, this isn’t going to court and keep your recordings they are no use to anyone.’

e. GO AWAY PAUL’

f. Why do you keep texting me, we have concluded our business and will be paid within 24 hours from the debt team, you won’t be laughing when you see what they bill you for, now please let’s be mature and stop this immature texting ..’

g. ‘you’re an abusive and aggressive man …’

h. Hahahaha your small fish and we both know you don’t have any recordings wake up and smell the coffee’

i. Blah blah blah, ciao’

j. ‘What part of DO NOT TXT ME DON’T YOU UNDERSTAND, go and boar someone else’.

  1. In his witness statement of 27th January 2015, Mr Chaddah contends that Mr Parkhurst was abusive towards him both in texts and phone calls concerning a bill for £300 Mr Chaddah was seeking to raise against him, whereas he was ‘professional’ and ‘polite’ in his responses. Despite having access to the text messages, his sworn testimony in paragraph 78 states in contradiction to them that:

‘I initially sent polite text messages in response, then did not respond at all.’

  1. In paragraph 79, he continues:

‘It was clear to me that I had behaved professionally throughout, and that this was simply an attempt by Mr Parkhurst to avoid paying his bill’.

  1. After he had been told of his termination by Mr Chandler on 6th December 2012 that EE considered that 2 Way Communications did not meet the standards required of an EE dealer in a number of respects, particularly in reference to customer service, he still considered:

‘I did not think that I had done anything wrong in relation to the incident involving Mr Parkhurst and I certainly did not think that the incident justified terminating 2 Way Communications as a dealer’.

  1. At trial, he accepted that ‘looking back now I think I did something wrong’ by persisting in responding to Mr Parkhurst’s undoubted abusive arguments about his bill.”

THE JUDGE’S APPROACH TO THE EVIDENCE

  1. The approach of the fact finding judge to evidential discrepancies between recent and sworn witness statements prepared with the help of lawyers and contemporaneous electronic stored information [‘ESI’] evidence now prolifically and readily available through the electronic disclosure process has recently been analysed by Leggatt J. in Gestmin SGPS S.A. v. Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm).

‘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.’

  1. Further back in time in the pre-digital era (but still as extant today), the court looking for credible and reliable evidence upon which to make findings of fact follows the approach enunciated by Lord Pearce in the House of Lords in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at p 431:

”Credibility’ involves wider problems than mere ‘demeanor’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person telling something less than the truth on this issue, or though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by over much discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”

  1. The absence of evidence can be as significant as the presence of it. Arden LJ in Wetton (as Liquidator of Mumtaz Properties) v. Ahmed and others[2011] EWCA Civ. 61 stated:

’11. By the end of the judgment, it is clear that what has impressed the judge most in his task of fact-finding was the absence, rather than the presence, of contemporary documentation or other independent oral evidence to confirm the oral evidence of the respondents to the proceedings.

  1. There are many situations in which the court is asked to assess the credibility of witnesses from their oral evidence, that is to say, to weigh up their evidence to see whether it is reliable. Witness choice is an essential part of the function of a trial judge and he or she has to decide whose evidence, and how much evidence, to accept. This task is not to be carried out merely by reference to the impression that a witness made giving evidence in the witness box. It is not solely a matter of body language or the tone of voice or other factors that might generally be called the ‘demeanour’ of a witness. The judge should consider what other independent evidence would be available to support the witness. Such evidence would generally be documentary but it could be other oral evidence, for example, if the issue was whether a defendant was an employee, the judge would naturally consider whether there were any PAYE records or evidence, such as evidence in texts or e-mails, in which the defendant seeks or is given instructions as to how he should carry out work. This may be particularly important in cases where the witness is from a culture or way of life with which the judge may not be familiar. These situations can present particular dangers and difficulties to a judge.
  2. In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present and the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence and the judge may be able to draw inferences from its absence’.
  3. I follow this guidance in my assessment of the evidence in this case.

THE JUDGE’S ASSESSMENT OF THE WITNESS IN THIS CASE

  1. Both the internal inconsistencies in Mr Chaddah’s evidence and the external with contemporaneous e-mail coupled with the lack of coverage of key issues in the case mean that little reliance can be placed upon his lengthy written evidence (2 statements; the first is 95 paragraphs long and the second is 23) which is mainly a self congratulatory exposition of his talents and value as a salesman who is always in the right when dealing with customers: the customers are almost always wrong. It does not deal properly with the issues of the inadequacy of his customer service system or the Parkhurst incident. His evidence is effectively an attempt to rewrite history or, at best a gloss on the truth. He gave his evidence confidently bordering on arrogance yet pleasingly, as one might expect from a successful salesman, but at times became choked with emotion as he did when confronted with the cold reality of the transcript of his rantings with customers, White and Parkhurst and that his superiors had to give him special support in his dealings with their customers in order to protect them all from potential dismissal by Orange that would have been a disaster for the businesses of both the Claimants and the Defendant. In my judgment, he displayed a lack of self awareness and objectivity when giving his evidence or in his preparation of his case. I place no reliance on his written or oral testimony save where it is supported by contemporaneous electronic or paper evidence.”

THE RESULT

The Claimant failed to prove contractual loss. The Defendant’s counterclaim was dismissed.

RELATED POSTS ON WITNESS CREDIBILITY

1. Litigators must know about credibility.

2. Witness Statements and Witness Evidence: More about Credibility.

3. Which Witness will be believed?Is it all a lottery?

4. The witnesses say the other side is lying: What does the judge do?

5. Assessing the reliability of witnesses: How does the judge decide?

6.  Which witness is going to be believed? A High Court case.

7. The Mitchell case and witness evidence: credibility, strong views and reliability.

8. Witness statements and witness credibility: getting back to basics

9. Witness credibility: what factors does the Court look at?

10. That “difficult second statement”: its hardly ever going to be a hit.

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