If I recall correctly… malleable memory and deceptive documents

Have you ever been to a property auction?

No, me neither. I’d be terrified of letting my intrusive thoughts in and accidentally walking away with a financially ruinous doer-upper.

At least that’s what I would have said until a few weeks ago. Not because that’s when I started my side-hustle as a clueless property developer, ripping out period features for rage-bait social media clicks. It’s when a colleague reminded me that I had in fact, many years ago, attended a commercial property auction for a client matter.

Until the very second before I was reminded of this, I would happily and confidently have testified that I had never been to an auction – I think I’d remember that! But it was hard to deny when my better-informed colleague was brandishing my own attendance note of the event. The experience clearly hadn’t left a lasting impression on me.

Imagine my mixed feelings. On the one hand, any delusion I had harboured that I would, if ever called upon, be someone a judge would describe as a ‘careful and reliable witness who gave every impression of trying to assist the court’ suddenly evaporated like a cartoon dream, punctured by self-doubt. On the other though, the (tragic) Knowledge Lawyer in me delighted in having been gifted a real-life example with which to illustrate the fallibility of memory that underpins Civil Procedure Rule Practice Direction 57AC…     

Primacy of the paperwork

In his now famous judgment in Gestmin v Credit Suisse [2013] EWHC 3560 (Comm), Leggatt J (as he then was) observed that “an obvious difficulty which affects allegations and oral evidence based on recollections of events which occurred several years ago is the unreliability of human memory”. Opining that the legal system, while cognisant of this, had not sufficiently absorbed the lessons of a century of psychological research, he went on to enunciate some key principles, viz:

• We believe our memories to be more faithful than they are
• A strong or vivid memory, or confidence in it, is no guarantee of its accuracy
• Human memories are not fixed and fading over time; but constantly retrieved and rewritten
• Our memories of our past beliefs are especially vulnerable, as we unconsciously revise them to be consistent with our current beliefs
• The process of litigation is itself liable to interfere with and corrupt memory
• In light of the foregoing, a commercial judge should “place little if any reliance on witnesses’ recollections of what was said in meeting and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts”.

Practice Direction 57AC

In April 2021, the understanding expressed in Gestmin was enshrined in a new Practice Direction 57AC, governing witness evidence for trials in the Business & Property Courts in England & Wales. Key principles from that PD and its associated statement of best practice include recognition that:

“Human memory:

• is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but
• is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore
• is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.“

In light of that understanding, the PD contains injunctions designed to minimise the extent to which the civil litigation procedure intrudes upon and interferes with a witness’s memory, and to allow the court to assess that memory. For example:

• a reminder that witness evidence should be restricted to matters they witnessed personally (i.e. it was experienced by one of their primary senses or it was a matter internal to their mind);
• caution should be exercised before showing witnesses documents that they did not see at the time of the events in dispute;
• the drafting of a witness statement should start with a witness interview and involve as few drafts as possible, as repeatedly revising a statement may corrupt rather than improve recollection; and
• on important disputed matters of fact, the witness should state how well they recall the matters concerned and state whether and how they have refreshed their memory (e.g. identifying any documents they have looked at).

Deceptive Documents

In two more recent cases though, the accepted wisdom that contemporaneous documents may be preferred to witness recollection has been tempered.

In Takhar v Gracefield [2024] EWHC 1714 (Ch), HHJ Tindal had the unenviable task of sitting on a retrial of a matter originally tried in the High Court 14 years earlier, before it was appealed to the Supreme Court and the judgment set aside for having been obtained by fraud. The resulting 300+ page retrial judgment contains a fascinating discussion of how to weigh the evidence in a “perfect storm of challenges” where:

• the witnesses would be giving evidence about events that were now nearly 20 years in the past; and
• their memories were also liable to have been distorted by years of almost constant (pre-PD57AC) litigation; but
• the Gestmin wisdom of preferring the contemporaneous documents was problematic given that this re-trial had been necessary because a key document in the original trial was subsequently found to have been forged.

After quoting the now-orthodox passages from Gestmin, HHJ Tindal went on to consider both its precedents and antecedents, including modern understanding of how memories are encoded, stored and retrieved, and their impact on assessing witness evidence.

HHJ Tindal then turned to the potential challenges of simply relying on contemporary documents.   

• Paucity – despite a proliferation of documents in many modern commercial cases, some key conversations may simply not be recorded so there is no document against which to test a witness’s version of events. For example, the £14m question in Blue v Ashley (also, incidentally, a judgment of Leggatt J, but with a very different universe of documents from Gestmin) turned on conflicting recollections of a conversation over an evening of drinks in the Horse & Groom pub.
• Ambivalence – even where contemporaneous documents exist, they may be “ambivalent or otherwise insufficiently helpful” to the particular issue in dispute.   
• Deceptiveness – at worst though, a contemporaneous document may be “deceptive at face value, deliberately misleading or even forged” – as was the case in this re-trial.  

In the circumstances of this case, the judge found the judicial fact-finding exercise could not be as simple as to rely on the documents, but would have to involve a mixture of techniques including “reference to the objective facts and documents, to the witnesses’ motives and recollections, and to the overall probabilities”. In each case, the judge will need to adopt a suitable mix along the spectrum from Gestmin (primacy of documents) to Blue (paucity of documents).

Jaffe v Greybull [2024] EWHC 2534 (Comm) was another recent case at the Blue end of the spectrum, involving “a clash of recollection between two sets of witnesses as to the content of oral statements made at an in-person meeting some years ago”, in which the judge was required “to decide, as between the evidence of two equally patently honest and truthful witnesses, which of their recollections is to be preferred”.

Refreshingly, the witnesses agreed that their unrefreshed memories were either non-existent or unreliable, and the parties were well-versed in the principles espoused in Gestmin, Simetra and Avonwick – all of which extol, in different ways, the virtues of reliance on documents over memory.

Mrs Justice Cockerill DBE also however referred the parties to Popplewell LJ’s 2023 lecture “Judging Truth from Memory” (also cited by HHJ Tindal in Takhar) which, while surveying developments in scientific and judicial thinking since Gestmin, suggests that “recollection has perhaps become undervalued in contrast to the increasing primacy attached to contemporaneous documents”, but notes that contemporaneous documentation is potentially vulnerable to the same infections as memory:

“[contemporaneous documents] may be produced near the time, but they are produced after the memory has been encoded, and if there is an encoding fallibility… it infects the so called contemporaneous record”.

“Contemporaneity” of the documents, says Popplewell LJ, “does not necessarily confer primacy or accuracy”

While the Claimants urged the judge to rely on the documentary evidence (in this case a “fairly speedy writing up of contemporaneous notes”) to resolve the difference of recollection, the judge was more circumspect:

“that is an argument which… neglects to take into account the possibility… of a faulty impression or recollection being encoded at a very early stage and recorded in that document. Ultimately therefore the document can be taken as the basis for a compelling argument; but it itself must be tested against the facts in the full context.”

After looking at that full context, the judge concluded that the meeting note she had been urged to rely on was (entirely innocently) inaccurate. The witness was, she said:

“reconstructing what was said in his second language from handwritten notes which were necessarily incomplete. The Note is not [a] live transcription… It is a reinterpretation of his manuscript notes which he took at the time… It is likely that coming to the meeting with [the party’s] discussed agenda in his mind [the witness] encoded and interpreted what was said in a way which deviated slightly but significantly from what was said and that in recording his recollections that small but significant deviation from memory became entrenched.”

Conclusion

Do these recent cases and lectures suggest a rebalancing in modes of judicial fact-finding? Lord Justice Popplewell certainly argues for a reconsideration of “the extent to which contemporaneous documents and inherent probabilities are treated as assuming almost exclusive primacy over recollections”. But ultimately a range of tools is likely to be appropriate and necessary to cater to the wide variety of commercial cases and the particular evidential challenges they present.

So, in the spirit of PD57AC, have I been to a property auction? Yes, but I have virtually no recollection of it, and was unaware until I refreshed my memory from an attendance note.