PROVING THINGS 31: WITNESSES TEND TO REMEMBER WHAT THEY WANT TO REMEMBER
How do judges decide whether a witness is accurate in their recollection? This issue has been a common theme on this blog. This was an issue considered by Mark Cawson QC (sitting as a Deputy High Court Judge) in The Connaught Income Fund, Series 1 -v- Hewetts Solicitors  EWHC 2286 (Ch). The case shows the dangers of relying on evidence that is, essentially, recollection. A witness can be honest and wrong at the same time.
The claimant company sought damages for professional negligence against the defendant solicitors. The claimant had never retained the defendant firm and there were issues in relation to the duty of care owed.
ASSESSMENT OF THE WITNESSES
The important point here is that the judge found that every witness involved was honest. However their recollection was inaccurate.
I heard from three witnesses of fact during the course of the trial, namely Mr Davies and Mr Bedding on behalf of the Fund, and Mr Butcher on behalf of Hewetts. I should say at once that I found all three of these witnesses to be frank and honest witnesses doing their best to assist the Court. Having said that, I did get the impression during parts of the evidence of each of Mr Davies and Mr Butcher that their evidence, and what they had to say in respect of certain matters, was based not on an actual recollection of events but on an ex post facto reconstruction of events in their own minds assisted, with varying degrees of accuracy and reliability, by a reading of the contemporaneous documentation some years after the event.
As to Mr Davies, he gave evidence by video link from near his home in Bath in view of the state of his health. Medical evidence confirms that he has been suffering from depression and anxiety, and I gained the clear impression that he has been affected by events surrounding the liquidation of the Fund in 2012, and the subsequent bringing of proceedings against him under the Company Directors’ Disqualification Act 1986. At various stages of his evidence, I gained the impression that he was (subconsciously) reconstructing events in his own mind so as to justify his position in a way that was not always supported by the facts. Further, he did have a tendency to be categorical about events in circumstances when, if probed under cross-examination, it became clear that he was unable to be so categorical. In this respect, I would refer, for example, to his evidence in respect of the Connaught Revolving Credit Facility Letter dated 17 September 2008. In chief, and initially under cross-examination, he was adamant that such a letter would only be provided where Connaught was advancing to TIL a lesser sum than TIL was, in turn, lending on to the ultimate borrower. However, he subsequently conceded that such Connaught Revolving Credit Facility Letters would have been produced by TIL in every case. He was similarly unequivocal with regard to whether Capita, in fact, carried out a separate review (including of the COT) akin to that carried out by the Fund in respect of loan transactions, only to equivocate on the point when pressed. In these circumstances, I consider that I must treat aspects of his evidence with some care.
In closing submissions, Ms Smith submitted that there were a number of occasions during the course of his cross-examination when Mr Davies became obviously tired, and when tired, conceded matters that he would not otherwise have conceded. I have to say that I did not get that impression. In the light of medical evidence before the Court, Mr Davies gave evidence for no longer than 30 minutes in any one stretch, with a break of at least 15 minutes after each such stretch. Although, overall, Mr Davies gave evidence for longer than had been suggested as ideal by the medical evidence, I carefully checked on a number of occasions whether Mr Davies was happy to proceed. On each occasion, Mr Davies indicated that he desired to continue and get his evidence over with, without giving any impression of being over-fatigued.
In his witness statement, Mr Butcher sought, in respect of the various allegations of negligence alleged, to explain why he had acted in the way that he had. Ms Smith relied upon the fact that, on a number of occasions, Mr Butcher was forced to accept that the reason that he had put forward in his witness statement could not, in fact, have been an explanation for the way in which he acted at the time. Further, she criticised him for coming up with alternative no more persuasive explanations in the witness box. Ms Smith argued that the way in which Mr Butcher had dealt with matters in his witnesses statement reflected a carelessness of approach in the preparation of his witness statement that was generally symptomatic of the carelessness that he adopted in performing his instructions. It is certainly right that a number of explanations put forward by Mr Butcher in his witness statement and in giving evidence to explain his actions did not stand up to scrutiny. However, I consider that it would be reading too much into the answers given to say that the way that the explanations were put forward is itself probative of carelessness on the part of Mr Butcher at the time. Consistent with what I have said above, I believe that Mr Butcher was making an honest attempt to recall, many years after the event, why he had acted as he did at the time. Further, I consider it necessary to consider carefully each of the allegations in turn, as I seek to do below, in order to assess whether Mr Butcher did act negligently as alleged, and that the issue in each case is not necessarily determined by the fact that Mr Butcher might have put forward some unsatisfactory explanations at trial.
Likewise, the mere fact that Mr Butcher might, under the pressure of cross-examination, have made certain concessions as to his culpability and therefore that of Hewetts is not, in my judgment, necessarily determinative of the issue. This is because the issue of whether Mr Butcher fell below the requisite standard is an essentially objective question, and not one dependent upon Mr Butcher’s subjective view expressed in the premise of particular questions posed under cross-examination. Again a careful consideration of the evidence in respect of each allegation of breach is required.
SUPPORT FOR GESTMIN
This passage underlines the difficulties identified by Mr Justice Legatt in Gestmin -v- Credit Suisse  EWHC 3560 (Comm):
“Evidence based on recollection
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.
THE “PROVING THINGS”: SERIES
- Proving things 1: Civil Evidence Act notices will not cut it
- Proving things 2: evidence to support a claim for damages must be pitch perfect.
- Proving things 3: the complete absence of evidence means the court will not speculate
- Proving things 4: Witnesses who just aren’t there.
- Proving things 5: witness statements and failing on causation.
- Proving things 6: “That’s what I always do” & proving causation.
- Proving things 7: If you don’t prove a loss you don’t get an order.
- Proving things 8: a defendant must prove that a failure to wear a seatbelt made a difference.
- Proving things 9: the role of experts
- Proving things 10: “He said, she said”: the difficulties of recollection.
- Proving things 11: Lies, damn lies and…
- Proving things 12: That oral contract is not worth the paper its written on.
- Proving things 13: Loss, there was no loss.
- Proving things 14: proving mitigation of loss
- Proving things 15: damages and evidence: going back to College
- Proving things 16: if you don’t prove it you don’t get it.
- Proving things 17: Heads of damage that were “entirely bogus”
- Proving things 18: Damages; Car hire; Proof & Summary Judgment
- Proving things 19: prove service or you could be caught out.
- Proving things 20: allegations of improper conduct have to be prove
- Proving things 21: when the whole process of investigation is flawed
- Proving things 22: damages, mitigation part 36 (and bundles).
- Proving things 23: serving important evidence late
- Proving things 24: Damages & the “But for test”: when it gets really complexProving things 24: Damages & the “But for test”: when it gets really complex
- Proving things 25: Attempts to smuggle in witness statements do not help (and carry no weight).
- Proving things 26: distinguishing between what you can remember and what you now think you did.
- Proving things 27: Burdens of proof, hearsay evidence and… attempted murder.
- Proving things 28: make unwarranted personal attacks and use a “mud-slinging” expert: that always ends well.
- Proving things 29: Make sure the witness evidence deals with the relevant issues
- Proving things 30: Office Gossip Proves Nothing: The importance of the source of information and belief.
CASES WHERE THE GESTMIN 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