THE IMPORTANCE OF GETTING EVIDENCE EARLY: “I DON’T REMEMBER NOW & I WON’T REMEMBER ANYTHING IF I COME TO COURT”
The observations of Mr Justice Nicklin in Rayner v Seabourne-Hawkins  EWHC 2895 (QB) highlight the importance of gathering evidence promptly. It also contains the text of a highly perceptive letter from a prospective witness that, in many ways, highlights many of the “Gestmin” principles, albeit in a much more succinct form. Although this is said in the particular circumstances of an action for slander the lessons here are ones of general application.
“Mr Barfoot’s letter, which I consider genuinely expresses his position, might stand as a warning to any claimant considering bringing a claim for slander of the risk of fading memories. Had he been approached, and asked for his recollection of events, shortly after 19 April 2018, Mr Barfoot may have been able to provide evidence of what had taken place and, critically, what had been said between the two men. As it was, Mr Barfoot was apparently not approached until mid-2019”
The claimant brought an action for slander. He alleged that the defendant had said defamatory things about him in the presence of others, in particular two security guards. The words were alleged to have been spoken in April 2018. Neither party took a contemporaneous, or near contemporaneous, statement from the guards. The claimant’s action failed on the grounds that he did not establish that the words were actually spoken.
THE JUDGMENT ON THE WITNESS EVIDENCE
The judge commented that neither party had called the security guards as witnesses. There was, however, a telling letter from one of the guards.
39. It is common ground between the parties that the two security officers who can be seen in the CCTV footage are Mr Barfoot and Mr Teodorescu. In his evidence at trial, the Claimant said that both Mr Barfoot and Mr Teodorescu had heard what he claims the Defendant said. Mr Barfoot and Mr Teodorescu were not called to give evidence, by either party.
The Defendant’s solicitors sent Mr Barfoot two letters – dated 17 July 2019 and 5 September 2019 – asking him whether he would provide a statement setting out what he recalled about the incident between the Claimant and Defendant on 19 April 2018. A letter from Mr Barfoot, dated 12 December 2019, has been admitted by agreement of the parties. In it, Mr Barfoot says:
“I have been approached on multiple occasions by both parties in relation to the events of 19/04/2018 and my recollection of the event in regards to what was said by both Mr Seaborne-Hawkins (sic) and Mr Rayner during their altercation.
Due to the time that has passed since the 19/4/2018 and the numerous incidents and people I have dealt with in both my work life and personal life in that time, I am unable to accurately recall the event in its entirety in regard to alleged comments made by either party. In 2018 in the time immediately following the incident, when the event was fresh in my mind, I may have had recollections of what had been said, however now that it has been over a year since the incident so I cannot 100% confirm the alleged comments made by either party.
I submitted a factual incident report on the day of the incident which was sufficient with my employer at the time. I am aware that both parties have a copy of this report which stands as my statement in relation to the incident. I therefore feel that any other recollection of the incident on the 19/4/2018 that I may have could possibly have been influenced by hearsay, 3rd party versions of the event or other factors.
I would like to add that considering I am being referred to as a witness in this case, I have only been contacted by legal representatives from either side very recently…
As I have made clear in both this statement and phone conversations with Mr Mathew Howe [Claimant’s solicitor] I am unable to remember anything in regards to what was said on the date of the incident, if called as a witness I will still be unable to remember what was allegedly said by either party and that questioning and evidence that may be shown will not have any impact on whether I remember anything.
The event was so long ago and has no relevance in my life for it to be important enough to recall in exact detail. I have been told by Mr Howe that his client believes that me being questioned in court might jog my memory and make me remember. I am certain this will not be the case and in a way I interpret this as an attempt to pressure me into incorrectly recalling the events of the day in question.
In closing I will say that if I am asked to court to appear as a witness I will still 100% be unable to remember any alleged comments made by either party and will be of no use to either party involved in this case.”
Mr Barfoot’s letter, which I consider genuinely expresses his position, might stand as a warning to any claimant considering bringing a claim for slander of the risk of fading memories. Had he been approached, and asked for his recollection of events, shortly after 19 April 2018, Mr Barfoot may have been able to provide evidence of what had taken place and, critically, what had been said between the two men. As it was, Mr Barfoot was apparently not approached until mid-2019. Those contemplating slander actions would be well advised to prioritise the gathering of evidence in support of their claim whilst events are still fresh in witnesses’ minds.