WHY ALL LAWYERS HAVE TO KNOW ABOUT THE FALLIBILITY OF MEMORY (EVEN COMPANY LAWYERS)

I have written about the Gestmin principles many times on this blog.  The importance of every litigator knowing about the fallibility of memory, and the way in which a trial judge is likely to approach these issues, is shown in the judgment of Mr Registrar Briggs in Cusack -v- Holdsworth [2016]  EWHC 3084 (Ch).

“… the fallibility of the memory has to be taken into account when determining issues of fact. Memory is an active process, subject to individual interpretation or construction. Each witness will have produced their witness statements many months ago, will have been asked to read or re-read their statement and review documents before giving evidence in court. There is high level commentary that reveals that this process reinforces a memory, even if the memory was false to begin with, and may cause a witness’s memory to be based not on the original experience of events but on the material which has been read and re-read.”

THE CASE

The Registrar was considering the evidence given in an unfair prejudice petition under s.994 of the Companies Act 2006.

THE JUDGMENT ON MEMORY

1. In this reserved judgment I have had time to review and reflect on the oral evidence given during the course of the trial. I make clear that I do not regard the evidence I heard from Ms Cheng, Mr Holdsworth or Mr Cusack as dishonest. I do regard their evidence as unreliable in large part, due to their individual reconstruction of events being tainted by bias arising from their prospective positions. Further the fallibility of the memory has to be taken into account when determining issues of fact. Memory is an active process, subject to individual interpretation or construction. Each witness will have produced their witness statements many months ago, will have been asked to read or re-read their statement and review documents before giving evidence in court. There is high level commentary that reveals that this process reinforces a memory, even if the memory was false to begin with, and may cause a witness’s memory to be based not on the original experience of events but on the material which has been read and re-read. This is supported by the recent research undertaken by Elizabeth Loftus, professor of law and cognitive science at the University of California which reveals the malleability of memory by showing that witness testimony can, after the fact, be shaped and altered.

2. That is not to say that all the oral evidence given was unreliable. The Court has previously explained that it is safer to base factual findings in commercial cases on inferences drawn from the documentary evidence, common ground and known or probable facts. I have undertaken the fact finding exercise with these guidelines in mind.

WANT TO READ THE RESEARCH?

Professor Loftus, the academic referred to in the judgment, has written widely on this subject.

• Creating False Memories (Scientific American).
• How reliable is your memory?
• Evidence based justice: Corrupted memory.
• How the truth gets twisted
• Interview: The Memory Warrior

RELATED POSTS

The Registrar’s judgment is a succinct summary of the Gestmin test.

THE GESTMIN TEST

• Witness evidence, reliability & credibility: Why everyone should read Gestmin
  

  OTHER POSTS ON WITNESS CREDIBILITY

  This issue is also discussed in a number of other posts.

  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.

  • 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

CASES WHERE THE GESTMIN APPROACH HAS BEEN CONSIDERED (AND APPLIED)

• R (British American Tobacco) -v- Secretary of State for Health [2016] EWHC 1169 (Admin)
• Barker -v- Baxendale Walker Solicitors [2016] EWHC 664 (Ch)
• Sloper -v- Lloyds Bank PLC [2016] EWHC 483 (QB)
• Dunhill -v- W Brook & Co [2016] EWHC 165 (QB)
• Royal National Institute for Deaf People -v- Turner [2015] EWHC 3301 (Ch)
• Mainland Digital Communications Ltd -v- Chaddah [2015] EWHC 1580 (QB)
• Foulser -v- The Commissioners for Her Majesty’s Revenue & Customs [2015] UKFTT 220 (TC)
• Lavis -v- Nursing & Midwifery Council [2014] EWHC 4083 (Admin)
• Le Puy Limited -v- Potter [2015] EWHC 193 (QB).
• Prescott -v- The University of St Andrews [2016] CSOH 3
• UBS -v- Kommunale Wasserwerke [2014] EWHC 3615.
• Hirtenstein -v- Hill Dickinson LLP [2014] EWHC 2711
• Virulite LLC -v- Virulite Distribution Ltd [2014] EWHC 366 (QB)
• Watson Farley & Williams -v- Itzhak Ostrovizky [2014] EWHC 160 QB
• East England Schools CIC -v- Luci Palmer [2013] EWHC 4138 (QB)