REUTERS | Navesh Chitrakar

Witness “was not a reliable historian”

I like reading Fraser J’s judgments. Where else would you get phrases such as “banter in a public house during consumption of a gallon of ale (or lager)” and “quite apart from any illumination of the wisdom (or otherwise) of discussing (still less agreeing) incentive payments of such extraordinary size at an evening of drinking in the Horse & Groom”, nestled in among legal analysis? (He was talking about Blue v Ashley, which I’m sure was an interesting informal business meeting!)

But, back to the point. And that is about witness evidence and what Leggatt J once called the “faulty model of memory as a mental record”.

A few years ago, I wrote about Leggatt J’s comments in Gestmin SGPS SA v Credit Suisse (UK) Ltd. I followed that piece a year or so later with some observations following Jefford J’s judgment in Dacy Building Services Ltd v IDM Properties LLP. That case has been back before the court (as Jonathan discussed last week) and it is where my Fraser J quotes were taken from.

Witness evidence

When I discussed the Gestmin judgment, I referred to how Leggatt J had dealt with the allegations in the case, and how it concerned a recollection of events that occurred seven years earlier, which he said brought into question the “unreliability of human memory”.

He went on to explain that research showed that people are unaware of how unreliable their memories are and believe they are “more faithful” than they actually are. He gave examples of two mistakes people commonly make about the accuracy of their memory:

“(1) That the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate.

(2) That the more confident another person is in their recollection, the more likely their recollection is to be accurate.”

Dacy v IDM

Fraser J had in mind the Gestmin judgment when he was considering the witness evidence before him. The issue Fraser J had to resolve was whether Mr Keran, on behalf of Dacy, had entered into an oral contract with Mr McLoughlin, on behalf of IDM, or whether the contracting parties were Dacy and HOK (Mr Cutmore was at the meeting on its behalf). All this took place in a bus shelter in Camberwell on 3 December 2015. Whether Mr McLoughlin’s attendance at the meeting was organised or was a “chance encounter” was another issue that had to be addressed.

What I found interesting was how Fraser J approached the task, and explained why he was prepared to accept or reject the evidence of a particular witness. The court hearing took place on one day and, in that sense, it wasn’t that different to an adjudication where the parties attend before the adjudicator, allowing the adjudicator to test the evidence and question the witnesses. We may not have cross-examination in the strict sense, but we can still get to the bottom of what happened. After all, the adjudicator found the contract was between Dacy and IDM, as did Fraser J some 18 months later.

I thought Fraser J’s opening remark about evidence was particularly relevant and something I wholeheartedly agree with:

“Watching a witness answer questions, and considering not only what they actually say, but how they say it, and also considering that evidence against contemporaneous documents, can give a tribunal a very good idea of what actually transpired on any particular occasion. Oral statements are not however the whole story.”

It is why a meeting with the adjudicator can be so useful.

Fraser J emphasised that the degree of confidence a witness has in their recollection can sometimes be “in inverse proportion to the accuracy of that recollection”, since we are all vulnerable to what Leggatt J referred to as the “risks of subconscious reconstruction”. In other words, tribunals should not assume that confidence in the recollection can be equated with “any reliable guide to the truth” since memories can be manipulated. Also that tribunals should take care when listening to witness evidence, but shouldn’t disregard it just because it isn’t supported by documentary evidence.

Interestingly, Fraser J referred to the judgment in Blue v Ashley, where the court also referred to other factors, including that:

“…there is a powerful tendency for people to remember past events concerning themselves in a self-enhancing light.”

When all this was applied to the five witnesses, Fraser J was able to determine the accuracy and truthfulness of each one. Even allowing for the Gestmin “notes of caution”, he was clearly more convinced by Mr Keran and Mr Cutmore than he was Mr McLoughlin, who had previously been referred to as a “not a reliable historian”. A conclusion he found similar to his own.

MCMS Ltd Matt Molloy

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