EXTENSIVE WITNESS EVIDENCE THAT WAS OF NO USE: A COMMON FINDING
We have already looked at the judgment of Mrs Justice Cockerill in Recovery Partners GP Ltd & Anor v Rukhadze & Ors  EWHC 2918 (Comm). It is worth looking at what the judge had to say about the witness evidence before her.
“This case has been heard over four court weeks. During that time, I have heard extensive factual evidence from some of the main participants in the events which were in issue. I wish I could say that this extensive witness evidence was extremely useful…. I cannot say that it was.”
This is the second time within a week that a judge has commented on difficulties caused by “over-drafted” witness statements. This appears to be a feature of this type of litigation. Millions (more thank likely tens of millions) of pounds are wasted each year by litigators preparing witness statements that are, to all and intents and purposes, useless. If anything the statements hamper the client’s case, prevent the proper assessment of risk, prohibit settlement and lead to the unnecessary escalation of costs. One suspects that in many cases the people preparing the statements have not read (or do not care about) the rules, practice direction and guidance in relation to the preparation of witness statements. Alternatively there may be an assumption that these rules simply do not apply to them, it is difficult to find any other explanation for the statements you see in many cases, (the decision in Hellard & Anor v Graiseley Investments Ltd & Ors  EWHC 2664 (Ch) is a prime example.)
The claimants brought an action in relation attempting to trace the assets of their deceased father. The trial lasted more than four weeks.
THE JUDGE’S COMMENTS ON THE WITNESS EVIDENCE
This case has been heard over four court weeks. During that time, I have heard extensive factual evidence from some of the main participants in the events which were in issue.
I wish I could say that this extensive witness evidence was extremely useful. However, despite the skilled and diligent cross-examination of Mr Girolami QC, Mr McQuater QC and Mr Weisselberg QC, I cannot say that it was.
Much of this is to do with the fact that the majority of the witnesses called were very intelligent and motivated and had plainly worked extensively to prepare for their evidence; firstly, with the legal teams in the preparation of their lengthy witness statements and secondly with the documents in preparation for their cross-examination.
However what sounds like a virtue is when pursued to this extent actually a vice; the result of this was that I could have very little confidence that the evidence which I was getting was their unclouded recollection rather than a heavily overwritten version based on their reconstruction of events in the light of their microscopic review of the documents – and their own view of their own case.
Leggatt J (as he then was) made an important survey of the problems attendant on witness evidence in litigation in his judgment in Gestmin SGPS S.A. v Credit Suisse (UK) Limited, Credit Suisse Securities (Europe) Limited  EWHC 3560 (Comm) at [15-22]. In it at  he referred to this process thus:
“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.”
This paragraph is not alarmist; it reflects the reality established in several empirical surveys – for example in the work of Elizabeth Loftus, and in the post 9/11 survey conducted by Talarico and Rubin which demonstrated that even so called “flashbulb” memories can be eroded by subsequently acquired information.
Interestingly, the fallibility of recollection was a point to which more than one witness adverted. Mr Jaffe himself seemed at times to perceive it and indeed highlighted this in relation to a particularly key passage of his evidence. Dealing with the critical period leading up to the first emergence of the term “Salford Principals” he explained that the recollection to which he had alluded in his witness statement, and which he said it seemed to him he actually had of seeing a particular presentation, had proved to be erroneous because he had since found evidence in the form of a plane ticket which reminded him that at this time he had in fact had to fly to Rome, where his daughter was undergoing an emergency operation. To similar effect was Mr Alexeev who said in response to one question “ some of it is reconstruction ”.
Overall, I have formed the view that I have to treat the evidence of Mr Jaffe, Mr Rukhadze and to a slightly lesser extent Mr Alexeev and Mr Marson with considerable caution, because for these reasons even to the extent that the witnesses were honestly trying to assist I could not be confident that I was receiving accurate factual evidence. This is regrettable not least because, as Mr Rukhadze mentioned more than once and Mr Alexeev echoed, these parties were not living by documents; plainly much occurred which I will not find reflected in the documentary record. As Mr Rukhadze put it: ” our lives cannot be reconstructed by emails and documents only “. Thus, the nature of the case and the disputes between the parties has forced me on occasion to choose between their accounts of key events, as the documentary trail was partial or lacking.
I have therefore in large measure adopted the course indicated by Leggatt J at  of Gestmin where he said:
“…the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, 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 in testimony of what the witness recalls of particular conversations and events.”