PROVING THINGS 66: IT ALL COMES DOWN TO THE CREDIBILITY OF WITNESSES: WHERE THERE’S A WILL THERE’S A WAY
This blog regularly looks at cases in which trial judges assess the credibility of witnesses. Here I want to look at the careful analysis of witness evidence by HHJ Paul Matthews (sitting as a High Court judge) in Legg & Anor v Burton & Ors  EWHC 2088 (Ch). This is another case in which the judge considered the guidance given in Gestmin in some detail. It is also another example of where the mechanism relating to the taking of witness statements was examined in court and commented upon by the trial judge.
The claimants brought an action asserting that their mother and father made mutual wills. This required a careful analysis of the claimants’ evidence (bearing in mind that they were beneficiaries under the first will but not the second).
THE JUDGMENT ON WITNESS CREDIBILITY
As to the second point, concerned with financial interests, I do of course bear in mind that all the witnesses, on either side, with one exception (Maryanne Dean) have a financial interest in the outcome of this case, though only the claimants gave direct evidence bearing on the question of an agreement between the testators.
As to the further point there made, dealing with the fallibility of memory, I was referred to the recent decision of Leggatt J in Blue v Ashley  EWHC 1928 (Comm), where the judge had to deal with the allegation of an oral agreement by a businessman to pay a sum of millions of pounds in certain circumstances to a business acquaintance with whom he was then drinking in a public house. (The judge held that the claim failed on the facts.) In doing so the judge referred to his own earlier decision in Gestmin SGPS SA v Credit Suisse (UK) Limited  EWHC 3560 (Comm), -.
“16. 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.
17. 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).
18. 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.
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 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.
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 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.”
The claimants were cross-examined at some length during the course of the first day of the trial. As a result, I am bound to record that the substance of what they said in their witness statements was not materially shaken. I bear in mind the strictures of Leggatt J in relation to the limitations of memory. We all remember what we want to remember. In Olins v Walters  EWHC 3060 (Ch), Norris J said of one witness:
“I have a deep sense that her evidence is not based upon a real recollection of two brief incidents (putting her signature on a document one or two decades ago) but upon a reconstruction of what she would have done having regard to her inability to recollect the Deceased’s attendance at Battersea and her willingness to do whatever Mr Walters requested. I am also alert to the danger that recollection can be coloured by the context in which it is invited.”
But there are too many features of the story in the present case which ring true for me to reach the conclusion that this story has been misremembered in any significant particular. These include the justifiable pride of Mr and Mrs Clark in achieving home ownership from humble beginnings, the purpose of acquiring it to have something to leave, the often-repeated desire to pass this on to the next generation, the wish in their retirement for Mr and Mrs Clark to engage professional help to ensure that this happened, the attendance of the solicitor and his clerk at the family home, the need to engage the children themselves (the claimants) in the process, and above all (for first-time home-owners and testators) the desire for doing it once and doing it right. And, although he was not ill when he made his will, Mr Clark in fact died only about ten months afterwards. For this family these events were very unusual, and taken together constituted a ‘one-off’. Their uniqueness makes it more likely that they would stick in the claimants’ memories. In my judgment, what they say is not just plausible but, taken as a whole, in my judgment very likely.
In addition, the second claimant in cross-examination brought out an incident which occurred in 2004. According to her evidence (which I accept), the testatrix told her that she was thinking of adding her grand-daughter Michelle (the first claimant’s daughter) to the will. It appears that Michelle had just become engaged to be married. The second claimant however reminded the testatrix that she had promised their father not to change her will, and the testatrix having reflected on this said that she would not after all do so.
Yet, during the trial it became apparent that in June 2004 the testatrix had made two wills, five days apart. In the first she had added Michelle both as an executrix and also to share the house or its value. In the second she had removed her as a beneficiary of the house. It is clear that, when the testatrix told the second claimant that she was thinking of adding Michelle, she was not quite telling the truth. She had already done so. Having then been reminded of her promise to her late husband, a few days later she changed the position back again. This incident, supported as it is by the evidence of the second claimant and the existence of the two wills, supports the view that, at that time at least, the testatrix accepted that in 2000 she had given her word not to change her will.
The second claimant was incidentally criticised because her witness statement does not refer to this incident in 2004. The relevant evidence was elicited only in cross-examination. The implication of the criticism is that this story is a recent invention by the second claimant. I reject any such implication. The second claimant explained, as the first claimant had done before her, that each of them typed up her own first draft of her witness statement on a computer and emailed it to their solicitors, who are based in Manchester. The solicitors presumably made some suggestions for alteration but the style, the substance and the formatting remained those of the claimants themselves. It does not surprise me that the relevance of the 2004 incident did not strike the second claimant at the time of preparing her own statement and submitting it to the solicitors. Nor am I surprised that the solicitors did not elicit it from the second claimant so that it could be included. This incidentally deals with Jonathan Gaunt QC’s third point in Charles v Fraser, cited above.
I have already given my views of the first and second claimants as witnesses. I was perhaps more satisfied that what the first claimant had said in her witness statement was what had actually happened then I might have been if it was the second claimant alone, but taken together, and with the benefit of the further 2004 incident, I consider that the evidence that they gave of the discussions with their parents at and after the time of the execution of the wills on 25 July 2000 was substantially correct. In particular, I do not accept that they have subsequently made up the critical ideas (i) that their father was concerned to lay down once and for all the devolution of the family property, so that the wills should be “set in stone”, and (ii) that their mother agreed to this.
From these critical ideas proceeded the question which Mr Clark put to the solicitor and also the discussion between Mr and Mrs Clark and their daughters after the solicitor had gone. I accept that Mr Clark was satisfied with the assurance he had received from the solicitor (whether he understood it accurately is irrelevant), and did not wish to take the matter further, but considered that, because he and his wife had promised each other, there would be no changes to their wills thereafter. Mr and Mrs Clark were novices in will making, but they had very clear ideas about what they wanted to happen. The fact that more sophisticated will makers would or might have thought differently in the same circumstances is therefore nothing to the point. I also accept that Mrs Clark expressly made the exclamation (from the kitchen) that she would not change her will, as reported by both the first and the second claimant. The fact that they use the same words in their statements does not surprise me, and it is all the less likely that each is mistaken. It certainly does not make them liars.
Absent other evidence to the contrary, in my judgment this evidence would establish two agreements between Mr and Mrs Clark. The first is an agreement at some time before the execution of the will, and the second is one just afterwards. Each was to the effect that the wills they were to make, or had just made, were irrevocable. Their daughters were to benefit from the gift of the house.”
RELATED POSTS: 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.
- Proving things 31: witnesses tend to remember what they want to remember.
- Proving things 32: Damages claim struck out as unsustainable: application to amend refused.
- Proving things 33: causation and the burden of proof in claims against solicitors.
- Proving things 34: There is no primer for scuttlers: when your ship doesn’t come in.
- Proving things 35: Reconstruction, documents & memory.
- Proving things 36: credibility and contemporaneous documents.
- Proving things 37: An approach to damages that was “fundamentally deficient throughout”.
- Proving things 38: Proving inability to pay on a security for costs application.
- Proving things 39: You can spend £10 million in costs and still not prove your case.
- Proving things 40: No evidence – no loss.
- Proving things 41: Proving damages – you are not going to get a second bite of the cherry.
- Proving things 42: silence does not prove inducement.
- Proving things 43: How the Court decides: a Primer.
- Proving things 44: Findings of Fact, Walter Mitty and Witness Training.
- Proving things 45: If you can’t prove loss the defendant is going to get summary judgment.
- Proving things 46: Late theories advanced by experts rarely help.
- Proving things 47: Fire in the loft: it wasn’t the mouse man at all.
- Proving things 48: valves, floods, models and causation.
- Proving things 49: it is difficult to prove damages when the opinion evidence in your witness statement has been struck out.
- Proving things 50: to prove breach of contract you first have to prove that there was a contract.
- Proving things 51: No evidence of loss – no damages
- Proving things 52: Solicitor’s negligence action fails on all counts: no negligence and no loss.
- Proving things 53: dishonesty some of the times doesn’t mean dishonesty all of the time.
- Proving things 54: getting £2 in damages after claiming £15 million.
- Proving things 55: I’ll say it again: No evidence – no damages.
- Proving things 56: A judge will not speculate when things could have been proven.
- Proving things 57: Lease said soonest mended: claim for substantial damages fails (and guess the reason)
- Proving things 58: Failure to prove causation leads to award of nominal damages.
- Proving things 59: To get special damages you have to plead them and prove them.
- Proving things 60: Putting seaweed out of the window and the judge who was even-handedly offensive
- Proving things 61: More on social media: Facebook Entries & witness credibility.
- Proving things 62: “Totally unsatisfactory evidence” at trial fails to prove special damages.
- Proving things 63: “Law Society fails to prove it made a loss”
- Proving things 64: Absence of strong and stable evidence leads to damages award of £2.00
- Proving things 65: Assumptions are not evidence (if the Court of Appeal has to ask for the matter to be made simple you are in serious trouble).