WITNESS EVIDENCE, RELIABILITY AND CREDIBILITY: WHY EVERYONE SHOULD READ GESTMIN (OR FAILING THAT, MY SUMMARY)
I spent the afternoon lecturing to a group of enthusiastic lawyers about the importance of witness statements (and where things can, and do go wrong). I was worried that the enthusiasm could be waning waning when I took them, in some detail, through the judgment in Gestmin SGPS -v- Credit Suisse (UK) Ltd  EWHC 3560. Gestmin is the case where Mr Justice Leggatt set out a number of key issues to be considered in relation to witness credibility. However in my view there is a pressing need for litigators to know the “Gestmin approach”. It has been adopted in many cases since, outside the realm of commercial litigation. In AB -v- Pro-Nation Limited  EWHC 1022 (QB) HH Judge Pearce (sitting as a High Court judge) considered Gestmin in the context of a personal injury case.
The claimant was seriously injured when he fell down the stairs of a bar. There were issues as to the cause of the fall and how much alcohol the claimant had drunk beforehand.
THE GESTMIN POINT
The judge was, expressly, asked to consider the Gestmin factors by leading counsel for the defendant.
29. Mr Kennedy QC for the Defendant made the point that, in so far as Mr Hirst’s statement was put in evidence by the Claimant, the whole of the statement had to be considered. That is potentially significant because, at paragraph 7 of his statement, Mr Hirst describes reviewing the CCTV footage, stating that “The Claimant looked really drunk in the footage.” However, I am as well placed as Mr Hirst to judge what can be seen on the footage and I take no regard of the opinion of lay witnesses (be it Mr Hirst or any of the witnesses called by the Claimant) in assessing that evidence.
30. In considering the evidence of those who were with the Claimant on the day of the accident, the Defendant invites me to have regard to the comments of Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd  EWHC 3560. In a trial that took place in 2013, Leggatt J was considering events that took place in July 2005 to July 2006. His assessment of the evidence was very dependent upon the recollection of witnesses. In dealing with the reliability of memory, the judge stated:
“16…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.”
He later went on:
“19. 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 to one side of the dispute. A desire to assist, or at least not prejudice, the party who 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.
20. 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 or 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 10 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 record. 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.”
31. I accept the Defendant’s contention that there are forces at play here which may affect the reliability of the evidence given by witnesses for the Claimant. The five witnesses, identified above, who were drinking with the Claimant on the day of the accident are his friends and may be expected to have ties of loyalty to him. Given the manner in which the Defendant puts its case on issues both of primary liability and of contributory negligence, the Claimant’s prospects of success may be affected by his level of drinking. It would therefore not be surprising if the witnesses tended to underplay the amount that they (and therefore by inference the Claimant) had drunk on this evening.
32. Further, the witness statements upon which reliance is placed were prepared some time after the accident. Even though each witness gave evidence in a seemingly straightforward manner and I am conscious that I should not be misled into thinking that evidence given clearly and confidently is necessarily accurate.
33. In cross-examining the witnesses and in his submissions to me, Mr Kennedy QC for the Defendant drew my attention to inconsistencies in the evidence. He said that these inconsistencies, coupled with the probability that witnesses called for the Claimant would be liable to understate how much they had had to drink, should lead me to the conclusion that they and therefore the Claimant had had more than 6 to 7 drinks on that evening. Specifically, the Defendant makes the point that the Claimant and Mr Boyes were the last to leave and therefore may have drunk more than the rest of the 11 group, though, having drunk a fair quantity of liquid earlier in the evening that would not necessarily lead to further drinking.
34. In my judgment, the evidence given by the witnesses as to the amount that they had had to drink had a ring of truth about it. They were a group of seven friends. They were buying drinks in rounds and therefore the total of seven drinks in the evening would be understandable, though not everyone would necessarily have a drink in every round.
35. Mr Boyes was clear in his evidence that he and the Claimant had drunk the same amount, namely six pints of ordinary strength lager. I found him to be a careful witness, willing to concede that he might be wrong on issues. Further, the evidence of other witnesses and the general practice of the group in buying rounds might tend suggest the total was seven pints rather than six.
36. To my mind the most powerful evidence on this issue is that recorded in the police officer’s notebook at page 478 in the bundle. He recorded a “friend” of the Claimant as saying that AB had had “6 or 7 drinks, beer.” Mr Boyes says that the “friend” must have been him – the others had left by the time the police officer arrived and in any event Mr Boyes said that he recalled speaking to a police officer. It seems to me that, at the time of that Mr Boyes spoke to the officer, he had no reason to understate the amount the Claimant had had to drink. This was not a case of drink-driving or other disreputable behaviour by somebody who had been drinking. Rather, his friend had been seriously injured. Mr Boyes had every reason to be accurate in what he told the officer as to the Claimant’s drinking and given the correlation between the range of 6 to 7 drinks that he describes to the officer and the practice of the group, as referred to above, the evidence is powerful in support of that range is being accurate.
37. My attention is drawn to a document prepared by a paramedic from the ambulance service which appears at page 481 in the bundle. It is then recorded, “Consumed large amount of alcohol according to friend.” Again Mr Boyes said that he was the only friend present and that he spoke to a paramedic and therefore again it seems highly likely that this note refers to what he had to say. Mr Boyce said that he would not have described what AB had drunk as “a large amount” and he thought he would have said that he had drunk 6 pints. He did concede that he might have described the Claimant has having drunk “quite a lot.”
38. Of course, how one describes the amount a person has had to drink, other than in simple terms of quantity, is a matter of judgment. One person’s “6 to 7 pints” may be another person’s “large amount.” Nothing in the paramedics note makes me doubt the accuracy of the clear contemporaneous note from the police officer.
39. Having considered how much the Claimant had had to drink at the time of his accident I turn to consider the effects of the alcohol upon him. The consumption of six or seven pints of ordinary strength lager would almost inevitably render a person’s alcohol level to be above that permitted to drive. This reflects the fact that, more generally, that level of alcohol consumption will affect a person’s judgment. As to how it would affect a person’s use of the staircase, it seems to me that the response is likely to vary greatly from person to person.
40. All the witnesses called on behalf of the Claimant described his condition prior to the accident being essentially normal. Each denies that he was in general terms behaving in a drunken fashion or specifically was unsteady on his feet. I again have in mind the warning words of Leggatt J in Gestmin in assessing this evidence. In particular, given that the witness statements were prepared for the purpose of proving that the accident happened as a result of the unsafe state of the premises, it is possible that witnesses would play down any unsteadiness on the Claimant’s part. But the witness statement of Mr Hirst supports the conclusion formed by each of the witnesses called by the Claimant to give evidence of events on the day of the accident, namely that AB was not visibly affected by is drinking.
41. The CCTV footage is potentially of help on this issue and I will turn to considering my assessment of that evidence.
42. I have indicated already that I have made my own assessment of the CCTV footage, rather than relying on the opinions of witnesses. In his expert evidence, Dr Lemon, called on behalf of the Defendant, commented at some length on the CCTV footage. In 13 his report at paragraph 6.2.6, he states “I consider that it is clear that the Claimant is very unsteady on his feet during his descent of the upper stairs. Whether that unsteadiness is a result of any potential intoxication will be a matter of evidence provided by others.” In oral evidence, he was a little more forceful on the issue, stating, “My interpretation was a drunken man who had lost balance.”
43. Mr Willems QC for the Claimant submits that Dr Lemon is not an expert in interpreting CCTV footage and that I should draw my own conclusions from such footage. It seems to me that Dr Lemon, who is well experienced in investigating staircase accidents, is likely to have seen far more footage of such accidents than me. That causes me to listen with care to his interpretation of the footage. But ultimately, this is not a matter of expert evidence but rather a case of carefully reviewing the footage in order to come to a conclusion.
The judge then carried out a detailed review of the expert evidence; the guidance and regulatory material relating to handrails in particular. The judge concluded that the defendant was in breach of duty and the claimant was not contributory negligent.
THE SIGNIFICANCE OF THE GESTMIN PRINCIPLES
This case highlights why all litigators should be familiar with the approach taken by Gestmin. In many cases now trial judges are approaching witness evidence by directly considering the Gestmin case. In other cases the principles are applied even if not directly expressed.
THE GESTMIN PRINCIPLES: AN OVERVIEW
To make life simple here is a bullet point version of the Gestmin principles.
POINT BY POINT
- There obvious difficulty with allegations and oral evidence based on recollection of events which occurred several years ago is human memory.
HUMAN MEMORY IS FALLIBLE
- Everyone knows human memory is fallible.
- The legal system has not sufficiently absorbed the research into the nature of memory and the unreliability of eyewitness testimony.
- We are not aware of the extent to which our own memories are unreliable and believe our memories to be more faithful than they are.
COMMON MISCONCEPTIONS WITH MEMORY
Two common and related errors are that:
- The stronger and more vivid is our feeling or experience of recollection the more likely the recollection is to be accurate.
- The more confident another person is in their recollection, the more likely their recollection is to be accurate.
THE FAULTY MODEL OF MEMORY AS A MENTAL RECORD
Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of the event and fades over time.
- Memories are fluid and malleable.
- They are constantly rewritten whenever they are retrieved.
- This is true of “flashbulb” memories of a shocking or traumatic event.
- The very description “flashbulb” memories is misleading because it reflects the misconception that memory is like a camera.
- External information can intrude into a witness’s memory as can their own thoughts and beliefs.
- This can cause dramatic changes in recollection.
- Events can be recalled as memories which did not happen at all or which happened to someone else (“a failure of a source of memory”.
MEMORY IS ESPECIALLY UNRELIABLE WHEN IT COMES TO RECALLING PAST BELIEFS
Memory is unreliable when it comes to past beliefs.
- Memories are revised to make them more consistent with our present beliefs.
- Studies show that memory is particularly vulnerable to inference and alteration when a person is presented with new information or suggestions when their memory is already weak due to passage of time.
THE PROCESS OF CIVIL LITIGATION ITSELF SUBJECTS MEMORY TO BIASES
The process of civil litigation itself subjects the memories of witnesses to powerful biases.
- Witnesses have a stake in a particular version of events.
- This is more obvious in relation to parties and those with ties of loyalty to parties.
- More subtle influences include the very process of making a witness statement and going to court to give evidence.
- A desire to assist the party calling a witness and a natural desire to make a good impression can be significant motivating factors.
THE PROCEDURE OF PREPARING FOR TRIAL HAS A CONSIDERABLE INTERFERENCE WITH MEMORY
Considerable interference with memory is introduced by the process of preparing for trial.
- A witness is often asked to make a statement a long time after the relevant events.
- The statement is usually drafted by a lawyer who is lawyer who is conscious of the significance of the issues in the case.
- The statement is made after a witness’s memory has been “refreshed” by reading documents.
- The documents include pleadings and other argumentative material which the witness did not see at the time or which came into existence after the event.
- The statement goes through several versions before it is finalised.
- Months later the witness is asked to re-read the statement and documents before giving evidence in court.
- The effect of this is to establish in the mind of the witness the matters in the statement and documents whether they be true or false.
- This also causes the witness’s memory to be based increasingly on the material and later interpretations rather than the original events.
THE DIFFERENCE BETWEEN RECONSTRUCTION AND RECOLLECTION
Witnesses are often asked in cross-examination the difference between reconstruction and recollection.
- These questions are misguided.
- There is a presumption that there is a clear distinction between recollection and reconstruction.
- All remembering of distant events involves reconstruction processes.
- 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.
THE APPROACH OF THE JUDGE
Mr Justice Legatt was particularly concerned with commercial cases. However, again, these matters are probably universal.
- A judge places little, if any, reliance on witnesses’ recollections of what was said in meeting and conversations.
- Factual findings are based on inferences drawn from the documentary evidence and known probable facts.
THIS DOES NOT MEAN THAT ORAL EVIDENCE SERVES NO USEFUL PURPOSE
- The utility of witness evidence is often disproportionate to its length.
- Its value largely lies 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 what the witness recalls of particulars conversations and events.
THE KEY POINT
- “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.”
CASES WHERE THIS APPROACH HAS BEEN CONSIDERED (AND APPLIED)
- R (British American Tobacco) -v- Secretary of State for Health  EWHC 1169 (Admin)
- Barker -v- Baxendale Walker Solicitors  EWHC 664 (Ch)
- Sloper -v- Lloyds Bank PLC  EWHC 483 (QB)
- Dunhill -v- W Brook & Co  EWHC 165 (QB)
- Royal National Institute for Deaf People -v- Turner  EWHC 3301 (Ch)
- Mainland Digital Communications Ltd -v- Chaddah  EWHC 1580 (QB)
- Foulser -v- The Commissioners for Her Majesty’s Revenue & Customs  UKFTT 220 (TC)
- Lavis -v- Nursing & Midwifery Council  EWHC 4083 (Admin)
- Le Puy Limited -v- Potter  EWHC 193 (QB).
- Prescott -v- The University of St Andrews  CSOH 3
- UBS -v- Kommunale Wasserwerke  EWHC 3615.
- Hirtenstein -v- Hill Dickinson LLP  EWHC 2711
- Virulite LLC -v- Virulite Distribution Ltd  EWHC 366 (QB)
- Watson Farley & Williams -v- Itzhak Ostrovizky  EWHC 160 QB
- East England Schools CIC -v- Luci Palmer  EWHC 4138 (QB).
OTHER POSTS ON WITNESS CREDIBILITY
This issue is also discussed in a number of other posts.
- Witness statements and witness credibility: getting back to basics
- Appealing on the judge’s findings of facts: a trial is not a dress rehearsal but “the first and last night of the show”.
- Assessing the credibility of a witness: it is a matter of communications.
- Reconstruction and recollection: honest witnesses get things wrong: which witness will be believed.
- The Central Bank of Ecuador case revisited: the Ocean Frost approach.
- When a witness says different things in different witness statements: don’t bank on winning.
- Reliability of witness evidence: honesty is not the same as reliability