WITNESS STATEMENTS: WITNESSES CAN, AND PROBABLY SHOULD, REFRESH THEIR MEMORY FROM CONTEMPORARY DOCUMENTS

Evidence of the degree and knowledge needed in drafting witness statements can be seen in the judgment of Mr Justice Jacobs in  Global Display Solutions Ltd & Ors v NCR Financial Solutions Group Ltd & Anor [2021] EWHC 1119 (Comm). It is the first case, to my knowledge, to refer to the new rules in relation to witness statements, albeit to show that it is necessary for witnesses to refer to contemporary documents.

“The Civil Procedure Rules were amended early in 2021, after witness statements had been served in the present litigation, so as to introduce new rules relating to the way in which witness statements should be prepared. Even under the new rules, however, it remains permissible for witnesses to refresh their memory from contemporaneous documents before setting out their evidence in witness statements: Paragraph 3.2 of PD 57AC, and the Statement of Best Practice contained in the Appendix to the Practice Direction at paragraphs 2.6 and 3.4, contemplate that witnesses will be shown contemporaneous documents, particularly those which they have previously seen when the events were fresher in their minds.”

THE CASE

The claimant brought an action against the defendant following the termination of business relationships between them. The claimant’s case was that prior to the relationships ended the defendant had deliberately been giving false forecasts of the goods that were likely to be purchased. One issue was the date on which the forecasts started to be inaccurate.  The defendant’s evidence in relation to this was not precise.

THE JUDGE’S OBSERVATIONS ON THE DEFENDANT’S WITNESS STATEMENTS

86. In the light of the facts described above, I conclude that during the entire period from July 2011 to the time when NCR revealed its hand on 16 January 2013, forecasts were given by NCR to GDS which did not represent its genuine and honest belief as to its estimated future requirements.

    1. This conclusion is reinforced, in my view, because there has been no clear evidence from any of NCR’s witnesses which identifies April 2012 as the start-date for the false forecasts, or explains why it is that the forecasts were false after that date but not before. NCR’s witness statements for these proceedings did accept that false forecasts were given. Thus, Mr. Kaparis said in his witness statement that he was aware that there was “a short period during which GDS was receiving demand schedules that were not accurate, subject obviously to when Dynamo would be ready, because, although no final decision on dates had been taken until later in 2012, GDS were not likely to be supplying products to NCR for all of the products in the forecast”. Mr. Mannion’s evidence in his witness statement was that there “would have come a stage later in 2012 when forecasts would continue to go out even though NCR knew there would come a point where we would stop buying from them, even though we were not sure what the precise stop date would be”. The reference to “later in 2012” is imprecise, but appears to relate to a period some time after his meeting with Ms. Ma in the spring of 2012 which is described a few paragraphs earlier. Ms. Lappin’s evidence was that she knew that the “data GDS were seeing in the demand schedules might not have been accurate for the entire period it covered, because at some point NCR intended to swap GDS parts for Dynamo parts”.
    1. It is a feature of all of these statements that none of them clearly states when it was that the forecasts became false, and none of them identifies April 2012 as the start date for falsity. Mr Gledhill sought to make a virtue of the vagueness of NCR’s evidence by emphasising the fact that the relevant events occurred many years ago, and the witnesses were doing what witnesses should do: ie giving their best recollection of events by searching their memories rather than looking at a large volume of contemporaneous documents. In their opening submissions, NCR explained that the NCR witness statements did not attempt to reconstruct from documents in the disclosure, which the witnesses had not seen for 8 years or more (if ever), what probably happened or to present that reconstruction as recollection. It was therefore unsurprising that no NCR witness gave “about the end of April 2012” as the relevant date. They submitted that the most likely date or period has to be worked out from the contemporaneous documents. Mr. Gledhill in his submissions also from time to time directed criticisms at GDS’s witnesses for basing their evidence (or, as NCR would submit, reconstructing their recollection) on a careful reading of the contemporaneous documents, rather than upon what they actually recalled.
    1. I am not persuaded that there was any virtue in the way in which NCR’s witnesses had given their evidence in their witness statements, vague as it was, as to the period during which false forecasts were given. There was a significant issue in the present litigation not only as to whether false forecasts were given at all (a matter that was in issue until NCR’s amendment in January 2021), but the period of those false forecasts. There is no reason at all why NCR’s witnesses should not have considered, and indeed looked carefully, at the significant volume of contemporaneous documentation before giving their evidence in relation to the question of when the forecasts became false to their knowledge. The Civil Procedure Rules were amended early in 2021, after witness statements had been served in the present litigation, so as to introduce new rules relating to the way in which witness statements should be prepared. Even under the new rules, however, it remains permissible for witnesses to refresh their memory from contemporaneous documents before setting out their evidence in witness statements: Paragraph 3.2 of PD 57AC, and the Statement of Best Practice contained in the Appendix to the Practice Direction at paragraphs 2.6 and 3.4, contemplate that witnesses will be shown contemporaneous documents, particularly those which they have previously seen when the events were fresher in their minds.
  1. If NCR’s witnesses did not wish to refresh their memory from the substantial body of contemporaneous documents considering them carefully, or if NCR did not wish them to do so, then that is to my mind surprising although it is not impermissible. However, it does mean that their evidence is far less likely to be reliable than it might otherwise have been. It also means that there is no, or at best a very shaky, evidential foundation for NCR’s case, that forecasts were not false until around April 2012 and then only in respect of the period covered by the forecast after the end of 2012.