WHEN A WITNESS SAYS DIFFERENT THINGS IN DIFFERENT WITNESS STATEMENTS: DON'T BANK ON WINNING
In Worthing -v- Lloyd’s Bank PLC  EWHC 2836 (QB) His Honour Judge Keyser Q.C. considered an allegation of negligence against a bank for giving poor investment advice. However the analysis of the evidence is of most interest to us here.
The claimants were suing the bank claiming that they had been given negligent advice in relation to investment. £700,000 had been invested. £657,388.21 was received back 18 months later. The primary limitation period for negligence in relation to the initial advice had expired before issue, the claimants argued that there was a continuing duty of care.
ANALYSIS OF THE EVIDENCE
The case is worth reading because of the analysis of the evidence. In particular the bank’s investment adviser took, and retained, very full contemporary notes in relation to the investment advice.
THE QUESTION OF WHY THE MONEY WAS TAKEN OUT
One issue the court had to decide was why the claimants had taken the money out. At trial it was stated that it was because they were dismayed by the investment. However, in a earlier witness statement, one of the claimants had stated it was because they needed the money.
82.9 The ultimate decision to sell the Portfolio was that of the claimants. Mr Doyle’s file note, set out above, correctly records: “Phil is disappointed to sell but circumstances with the borrowing have controlled this situation.” I reject Mr Worthing’s oral evidence that the decision was not made reluctantly and was simply because the claimants did not want to lose any more money. It may be noted that in his first witness statement (where a witness’s first statement has been superseded by a later version, I have generally referred only to the latest version) Mr Worthing stated: “If it had not been for the overdraft problem we would have retained the Portfolio as advised by the defendant.” That was correct. The claimants did not want to sell and did not do so because they thought the Portfolio unsuitable for them; they sold because they reluctantly needed to have access to the money to pay off an overdraft that had neither existed nor been envisaged when the original investment was made. Mr Worthing’s departure from his original statement on this point is, I think, illustrative of the process of interpretation undergone by the claimants’ evidence by reason of a combination of the lapse of time and the work on their minds of their disappointments and the benefit of hindsight.”
THE DANGERS OF THE SECOND STATEMENT AND “HINDSIGHT” EVIDENCE
This highlights the problems that arise when witness statements say contradictory things.
GUIDANCE IN GESTMIN
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. It is worthwhile looking at a number of the points made in the judgment.
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.