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In Jaffe v Greybull Capital [2024] EWHC 2534 (Comm) Cockerill J determined a case involving an allegation of fraudulent misrepresentations made orally eight years previously, in which: (i) there was a conflict in recollection between the “evidence of two equally patently honest and truthful witnesses”; and (ii) a note produced shortly after the meeting by one of the two honest witnesses supported the Claimant’s case as to the fraudulent misrepresentations.

The (by now) classic Gestmin approach

Unsurprisingly, reference was made to the “now classical” passage from Leggatt J’s judgment in Gestmin v Credit Suisse [2013] EWHC 3560 (Comm) relating to the fallibility of memory, the unreliability of oral evidence, and the importance which Judges should place on contemporaneous documents. Courts and Tribunals now regularly rely upon this passage in the approach to fact finding, not only in the commercial sphere.

Reference was also made to this (slightly less well known) passage from the Court of Appeal’s judgment in Simetra Global Assets Ltd v Ikon Finance Ltd [2019] 4 WLR 112 at [48]:

"In this regard I would say something about the importance of contemporary documents as a means of getting at the truth, not only of what was going on, but also as to the motivation and state of mind of those concerned. That applies to documents passing between the parties, but with even greater force to a party's internal documents including e-mails and instant messaging. Those tend to be the documents where a witness's guard is down and their true thoughts are plain to see. Indeed, it has become a commonplace of judgments in commercial cases where there is often extensive disclosure to emphasise the importance of the contemporary documents. Although this cannot be regarded as a rule of law, those documents are generally regarded as far more reliable than the oral evidence of witnesses, still less their demeanour while giving evidence…."

Cockerill J noted at [229] that there was a “fairly powerful "classic Gestmin" case” available to the Claimants, namely that the near-contemporaneous note of the meeting was an “accurate” reflection of the representations which had been made. That was particularly so in circumstances where the witness who made the note was honest and truthful.

A change in approach?

However, the Judge drew attention (at [200]) to the “important” lecture given by Popplewell LJ to COMBAR last year: "Judging Truth from Memory". That lecture updates and expands upon the matters considered in Gestmin, and deals with the value of recollection, the nature of the fact-finding exercise in commercial litigation, the science of memory and the problems which result from faulty encoding of memories.

Particular reference was made to the following paragraphs:

36. …When we encode our memories we don't photograph what is happening; we interpret what is happening, and that interpretation uses our schema. … So experience and expertise can make a big difference to what goes into our memory…. "We don't see things as they are, but as we are"….

40. The semantic memory can also corrupt a recollection by affecting it at the retrieval stage. Our beliefs, attitudes and approach, our worldview, our schema, changes over time. The recollection is affected by the schema at the time of retrieval, which may be different from that which applied at the time of the events in question…. As Leggatt J said in Gestmin "Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs."…

52. Further, encoding is often influenced by pride or wishful thinking. It is a common, although not universal, human tendency to want to portray our participation in events in a way which paints us in the best light. … it can also infect how witnesses pictures events to themselves when first encoding the memory…

55. … 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, which there may be for all these different reasons, it infects the so called contemporaneous record every bit as much as other reasons for the fallibility of recollection which affect it at the storage and retrieval stage.

66. One [other issue] is reconstruction from semantic memory. We assume that something happened because that is what we would expect to have happened. … our memories fill in gaps by reference to what we assume we would have done or would not have done. The witness will respond in cross-examination that they are sure that something did not occur because "I would never have done that", or vice versa.

67. The dangers here are several: things do not always happen as we expect them to, and may not have done so on this occasion. We are also applying our present semantic memory schema to our attitudes at a different time. A third is another common source of erroneous recollection, in my experience, which is, again, pride or wishful thinking. We like to suppose that we did or thought that which we now consider we ought to have done or thought."

In light of that, Cockerill J determined that, although the document in question could be taken as the “basis for a compelling argument”, it still had to be tested “against the facts in the full context”, including by considering what each party was focussing on but did not communicate to the other side. Those matters might have affected the “encoding” or contemporaneous recording of the facts in issue (at [232])). Cockerill J therefore considered a number of factual issues which helped her to determine the motives and inherent probabilities, including:

  1. The likelihood that one of the two witnesses had gone “off-message” from other presentations that were prepared at the time, in the sense of straying from the agreed script;
  2. What was actually of importance to the parties at the time (as revealed by other exchanges);
  3. Counterfactuals and motive”; and
  4. The short distance between ambiguity and inaccuracy”.

Ultimately, the Judge concluded (at [285]) that something close to what was in the contemporaneous note had been said, but that so far as the specific words that were relevant to the alleged fraudulent misrepresentation were concerned, the note was:

in the critical respect (entirely innocently) inaccurate. Mr Hilz was reconstructing what was said in his second language from handwritten notes which were necessarily incomplete. It was a fairly lengthy meeting. The Note is not the live transcription with which we have been blessed at trial. It is a reinterpretation of his manuscript notes which he took at the time. The format of the note suggests that those manuscript notes were sketchy and not word for word.

[The relevant issue] was not the main focus of interest at the time. There is scope for "Chinese whispers" both in the taking of a note and in its interpretation, particularly when there is discussion immediately afterwards. While the natural tendency is to imagine a note written up later in the same day or the next morning is as good as a transcript the evidence on the fall off of memory in the immediate aftermath of an event is clear and clearly collated in the speech of Popplewell LJ.

What does this mean going forwards?

In recent years, the received wisdom has been that documentary evidence is likely to be the touchstone for factual accuracy, particularly in complex commercial cases. However, there have been glimmers of dissent. For example, in GML International Ltd v Harfield [2020] EWHC 909 (QB), Richard Hermer QC (sitting as a judge in the High Court) cautioned that the guidance in Gestmin should not be taken as “setting down a fixed rule, or any form of irrebuttable presumption, that documentary evidence is always to be preferred to the evidence of witnesses with which it might conflict” (at [65]).

Mr Hermer QC stressed that the existence of a relevant document does not provide the court with any “automatic shortcut” or “forensic heuristic” by which it is “relieved of its obligation to take into account all the evidence relied upon by the parties” (at [65]). He gave the examples of documents which are inherently unreliable because they were “designed to give cover to unlawful facts” and documents on which the oral evidence “throw[s] an entirely different light”.

The decision in Jaffe: (i) is likely to increase the extent to which the analysis in Popplewell LJ’s lecture will feature in submissions and judgments going forwards; and (ii) provides a helpful demonstration of how a party may challenge the accuracy of a contemporaneous record without suggesting that it was produced with any dishonest intention. Where the nature of the document is such that its contents could have been affected by a party’s state of mind, then that state of mind must itself be interrogated in order for the accuracy of the document to be assessed. The record will reflect not only the facts, but also the “worldview” of the recorder, including their “pride or wishful thinking”. These factors will impact the encoding of memories, and hence their translation into contemporaneous records, “every bit as much” as they will affect the subsequent storage and retrieval of the same memories.

In summary, whilst a (near-)contemporaneous document will frequently still provide the “basis for a compelling argument”, there is fruitful concrete guidance here for how one might throw doubt on such an argument in light of “the facts in the full context”.

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