THE ASSESSMENT OF WITNESS EVIDENCE: NOT A MINER MATTER: WITNESSES TEND TO REMEMBER WHAT THEY WANT TO BELIEVE

Many judgments in contested trial contain a section where the judge gives an overview of the witness evidence, and their assessment of the credibility of those who gave evidence.  The judgment of HHJ Eyre QC in  The National Union of Mineworkers v Organisation Internationale De L’Energie Et Des Mines [2019] EWHC 1359 (Comm) contains interesting observations of the task of the judge, particularly in relation to matters where witnesses are attempting to recall matters that happened decades earlier.

“I also have to be conscious of the fact that any witness is inevitably recollecting matters from a particular viewpoint. I have regard to the common human capacity and tendency for a witness genuinely but mistakenly to recollect past events as having actually happened in the way in which the witness now with hindsight believes they would, or indeed should, have happened.”

 

THE CASE

The claimant was seeking clarification of the sums due to each party from a third party debt. This was initially a loan in 1984.  There was then a complex process of dealings but, essentially, the third party never repaid the loan.

THE JUDGE’S ASSESSMENT OF THE WITNESSES
  1. The witnesses giving evidence for the Claimant were in large part uncontentious. Mr. Kitchen became General Secretary of the NUM in October 2007 and was not involved in the earlier dealings. It was apparent that while Mr. Scargill for the Defendant contended that certain actions of Mr. Kitchen had not been appropriate he did not suggest that the latter was not seeking to give truthful evidence Mr. White had worked as the Claimant’s Assistant Finance Officer to 1989 and then as Finance Officer to 6th April 1998 and had rejoined the Claimant’s employment in 2009. There was dispute as to the interpretation of some of the entries made by Mr. White and others in the Claimant’s accounting records but no suggestion that Mr. White was not seeking accurately to explain what he had done. In any event Mr. White was not involved in the crucial discussions and agreements but instead recorded what he had been told by others to record. It follows that Mr. Scargill was the only person giving evidence from his own recollection of many of the key events. There was, however, considerable dispute about the accuracy of that recollection and even more as to the interpretation placed by the Defendant on the relevant dealings with the Claimant saying that the account given by Mr. Scargill was not consistent with the contemporaneous documents or with his subsequent actions.
  2. In assessing contentious factual evidence I am entitled to take account of the demeanour of a witness and the impression I formed having seen that witness give oral evidence. However, in doing so I have to be conscious that by itself demeanour can be an untrustworthy guide to the reliability of a witness’s evidence. Thus what might appear to one judge to be evasion and a reluctance to answer questions indicative of unreliability in the evidence of a particular witness might to another judge be seen as commendable caution and care in giving evidence indicative of the reliability of the same witness’s evidence.
  3. I also have to be conscious of the fact that any witness is inevitably recollecting matters from a particular viewpoint. I have regard to the common human capacity and tendency for a witness genuinely but mistakenly to recollect past events as having actually happened in the way in which the witness now with hindsight believes they would, or indeed should, have happened. In that respect I have also had regard to the cautionary note sounded by Leggatt J in Gestmin SGPS S A v Credit Suisse (UK) Ltd & another [2013] EWHC 3560 (Comm) at [15] – [22] as to the unreliability of human memory.
  4. Those difficulties are compounded in this case by the very considerable period of time which has passed since the key events. Moreover, it was apparent that there are still high feelings about the events of the miners’ strike and their aftermath. It was apparent that Mr. Scargill remained aggrieved by the allegations which Mr. Windsor had made against him and by the conclusions which Mr. Lightman reached in his investigation of those allegations nearly thirty years ago. Mr. Scargill remained concerned to assert that his actions at that time and before had been justified and appropriate.
  5. In many cases the difficulties inherent in relying on the recollection of witnesses cause the court to say that the witnesses’ evidence must be viewed through the prism of the contemporaneous documents and that the safest course is for findings of fact to be based on inferences drawn from such documents. There are, however, difficulties with even that course in this case. A number of the relevant documents were drawn up in the context of the miners’ strike and of the concern that the Claimant’s assets would be placed in the hands of sequestrators. As Mr. Scargill explained when he was answering questions raised by Mr. Lightman in 1990 this meant that a number of documents were deliberately backdated. This was done to indicate that certain actions had been taken before the Claimant received notice of the appointment of sequestrators. The Claimant does not criticise this conduct. For the Claimant Miss. Ranales-Cotos described the position correctly in my judgement by saying that it was an “open secret” that the documents and the affairs of the Claimant had been organised with a view to protecting assets from the sequestrators to the extent that this could be done. The unreliability of the contemporaneous documents continued after the end of the miners’ strike. Thus on 21st July 1986 Mr. Scargill wrote to Mr. Windsor on behalf of the IMO saying that the latter would lend Mr. Windsor £29,500. The letter said that the sum of £29,500 was enclosed but Mr. Scargill accepted before me that this was incorrect and that no money had been enclosed with the letter. It is also of note that many of the documents put before me were themselves compiled some years after the crucial dealings (which were in the period 1984 to 1990) and so were of only limited assistance in assessing what had in fact happened and how the parties’ actions were to be interpreted.
  6. In those circumstances I must take care in drawing inferences from the documents. My consideration of the documents as well as of the witness evidence must be undertaken in the light of the context and date of the documents and having regard to the inherent likelihood or unlikelihood of the parties’ contentions as to what was done or intended.
  7. Miss. Ranales-Cotos invited me to conclude that Mr. Scargill was being deliberately evasive in the answers he gave when cross-examined and for that reason to reject his evidence. I do not find that Mr. Scargill was deliberately seeking to avoid answering the questions he was asked. Indeed at times he answered at great length the points being made to him. However, he was markedly unwilling to make any concessions or to accept that his account might be mistaken even when it was contrary to uncontentious documents or to inherent likelihood.
  8. There were repeated instances when Mr. Scargill sought to explain statements he had made at various times in the past both orally and in writing as having been made in error or without reflection. By way of example, Mr. Scargill told the 1998 annual conference of the NUM that the proceedings against Mr. Windsor related to a debt owed to the NUM. Similarly he told a special delegate conference in January 2002 that the proceedings were for money owed to the NUM but were being brought by the IEMO on the NUM’s behalf and said “the money involved will come from the IEMO to the NUM”. Those statements are directly contrary to the case now being maintained by the Defendant. Mr. Scargill said that his comments on those occasions had been made in error because he had been commenting on reports prepared by others and had not picked up the errors. I was unable to accept that explanation in the light of Mr. Scargill’s detailed involvement in and knowledge of the dealings with Mr. Windsor. Indeed the comments made in 2002 had been immediately preceded by an assertion by Mr. Scargill that he had done all the work on the case. That detailed knowledge and involvement was apparent from Mr. Scargill’s evidence in these proceedings. In the light of that involvement and the context in which the comments were made it is neither realistic nor credible for Mr. Scargill to say that he made mistakes through a failure to pick up on errors made by others and I reject that contention.
  9. Similarly Mr. Scargill sought to deny that he was involved in authorising various actions or documents in the past when I am satisfied he was involved. Again by way of example Mr. Scargill signed a letter dated 5th June 2000 to the NUM’s auditors in relation to the 1999 accounts. This letter referred to an entry in the accounts which showed Mr. Windsor as a debtor of the Claimant in the sum of £29,500. The letter said that the sum was due from Mr. Windsor, that it was fully realisable, and made reference to the French legal proceedings. Mr. Scargill was not able to explain why Mr. Windsor appeared as a debtor in the NUM’s accounts and said that the entry was erroneous. Significantly for the current purpose Mr. Scargill said that he had not read the letter of 5th June 2000 before signing it. I reject that explanation. It is clear that the letter was based on a memorandum sent to Mr. Scargill by Hazel Riley, the NUM’s finance officer, asking for confirmation of the points to be made in a letter to the auditors. That memorandum referred to the sum owed by Mr. Windsor but it is noteworthy that the letter contained additional material relating to the French proceedings which was within the knowledge of Mr. Scargill. I find that Mr. Scargill received the memorandum and authorised the letter having given additional instructions as to its contents. Mr. Scargill’s assertion that he was unaware of the letter is an instance of his refusal to acknowledge matters which are inconvenient for the Defendant’s current case and of his preparedness to deny that he had knowledge which he clearly did have and to deny that he took action which he clearly did take.
  10. It follows that there is a marked contrast between Mr. Scargill’s evidence now and the picture which appears from his past words and actions. Moreover, as I will explain below there are aspects of Mr. Scargill’s account of the parties’ dealings in 1990 which are so contrary to what I conclude was intrinsically probable as to be incapable of belief.
  11. In those circumstances I have concluded that I cannot regard Mr. Scargill’s evidence about the past dealings as reliable save where it is supported by inherent probability or by undisputed and reliable contemporaneous documents. I do not need to and do not make a finding as to whether that unreliability is because Mr. Scargill has persuaded himself that matters happened in the way which he now believes was appropriate (and in that respect I remind myself of the matters I have set out at [29] above) or because he has no actual recollection of the relevant events and is giving evidence based on current reflections as to what he thinks would have happened or because he was giving an account which he did not believe to be true. The significant feature is that I cannot rely on this evidence.
  12. The Claimant invited me to draw inferences adverse to the Defendant from its failure to put forward evidence either from Alain Simon or from George Rees. The former was the General Secretary of the Defendant in 1990 and the latter was part of the team involved on behalf of the Claimant in the negotiations in 1990. Both of those gentlemen are still alive and the Claimant says that they could be expected to have given evidence supporting the Defendant’s account of matters if that account were true. I reject that contention and draw no inference from the Defendant’s failure to call those gentlemen as witnesses. I do so in large part because of the passage of time since the relevant events. The matters about which M. Simon and Mr. Rees would have been giving evidence took place in 1990 and before. It would not be appropriate to draw an adverse inference based on a party’s failure to call a witness to give evidence about events nearly thirty years before the trial. In addition I find that there is force in the point made by Mr. Scargill that Mr. Rees was listed together with others who were not in fact called as witnesses in the Claimant’s Case Management Information Sheet as a witness whom the Claimant anticipated calling. It would be as appropriate to draw inferences adverse to the Claimant from the absence of Mr. Rees as it would be to draw inferences adverse to the Defendant but I do not do so in respect of either side.