A look at how the courts approach witness evidence where a witness's memory has been lost or changed over time and consideration of how scientific research on human memory is making its way into the courts in light of the recent Wirecard case.
Ask anyone to recall in detail a conversation they had on a specific day and time several years ago and their recollection will likely be hazy at best.
It is understandable then why some witnesses struggle to recall details or have conflicting recollections when giving evidence at trial. In commercial litigation, the facts in dispute are often the core of the proceedings and judges have remarked how deciphering between conflicting narratives can be the most difficult part of their job.
As such, it is important for litigants to understand how the courts approach witness evidence and how scientific research on human memory is increasingly influencing the courts' decision-making.
Science of human memory
Recently, there has been a growing willingness by the judiciary to consider the science of human memory. Judges are more frequently referring to key scientific findings as to how and why our memories alter over time. This has included many factors, such as how:
- a person's changing experiences, expertise, and beliefs can alter a memory;
- conversations after an event can change what a person understood to have happened;
- the benefit of hindsight can manipulate a memory when it is retrieved;
- there is a human tendency to see and hear what we want, and this can influence the way a memory is formed;
- the human memory will fill in any gaps with assumptions, often formed or influenced by our self-image;
- the recall of a memory can depart its facts from the original memory, described as "single-handed Chinese Whispers";
- the presence of litigation itself can manipulate a person's own account of what happened to fit in with the personal biases involved; and
- the opinions of peers and colleagues can influence our recollections.
Recent case law
Scientific discoveries on human memory were a factor considered in the recent case Rechtsanwalt Dr. Michael Jaffé (acting as insolvency administrator over the assets of Wirecard Technologies GmbH), WDB Abwicklungs AG i.L. (formerly called Wirecard Bank AG) v Greybull Capital LLP, Windsor Jersey Limited, Petrol Jersey Limited, Marc Joseph Meyohas ("Wirecard").
This case concerned a representation, allegedly fraudulently false, made during a meeting eight years prior concerning the provenance of funds invested into a company. The crux of the case was a "classic one" in that it rested on a clash of witness recollections as to what was said at the meeting in question. However, the case was described as "quite unusual" for two reasons. Firstly, the witnesses in Wirecard admitted that their memories were hazy, unrefreshed, and therefore potentially unreliable. Secondly, the judge concluded that both key witnesses' accounts were essentially honest, despite being mutually incompatible.
The judge's decision did not come down to witness credibility, but an assessment of which recollection was the correct one. To assist with this, the judge turned to scientific reasoning to consider how each witness's memory might have been affected.
In the end, the judge favoured the defendant, finding the claimant's account "(entirely innocently) inaccurate". She concluded that the alleged representations had not been made. Part of the judge's reasoning for this decision was that the claimant's witness had reconstructed what was said at the meeting from handwritten notes prepared after the meeting that were "incomplete" and "not word for word". The judge also found strength in the defendant's argument that had they lied at the meeting, they would have remembered.
The courts' general approach
Historically the courts have not considered the scientific research on the distortion of human memory, this recent shift represents a change of approach for the courts.
Another case considering scientific research on human memory was Gestim SGPS SA v Credit Suisse (UK) Limited ("Gestim"), a recent professional negligence case. Like in Wirecard, the judge in Gestim thought it important to include that an obvious issue with the evidence presented was the unavoidable "unreliability of human memory".
In this case, the judge opted to deal with the evidence by placing less reliance on the oral recollection of what was said during meetings and conversations, and more on the documentary evidence. It was made clear in this case that the courts were aware there is a risk that a witness's account may be corrupted by the opinions contained in the documents prepared after the event. The judgment goes as far as to warn others against assuming a witness's testimony is correct simply because the witness is confident in their account.
Placing a greater reliance on documentary evidence has been a growing development in the judicial approach to decision-making for some time. For instance, Simetra Global Assets v Ikon Finance Ltd held that documents – in particular internal communications such as email or instant messaging – should have a greater weight placed on them as they often indicate the true and candid account of a witness' thoughts.
This is on the basis that an account transcribed after the event is done so not in sight of litigation or influence from any peers or colleagues. It therefore seems possible that the right approach for judges and practitioners to take is to rely more heavily on the facts that can be established from documents rather than a witness's account. However, judges explicitly belittling the reliability of human memory in general (rather than the memory of a specific witness) appears to be a new development.
That is not to say that the judiciary should rely solely on contemporaneous documents. In a speech given last year, Lord Justice Popplewell argued that documents do not necessarily convey accuracy, despite an increasing preference amongst the judiciary to rely more heavily on them.
Lord Justice Popplewell argues that where a memory has been altered, as a result of one or more of the factors listed above, any document subsequently prepared will suffer from the same bias. Relying on witness testimony rather than documentary evidence aligns with the concerns raised in Wirecard that attendance notes and documents prepared after a meeting or conversation are likely to be influenced by the opinion of the person who wrote it.
It is also clear that the courts are not ready to apply the Gestim approach in personal injury cases, where it has been reinforced that a witness's account is more reliable than any document prepared in consideration of litigation (see Barrow & Ors v Merrett & Anor).
Despite Lord Justice Popplewell's interesting and very relevant speech being referred to frequently in Wirecard, his approach seems to be one not yet fully adopted by the courts. As highlighted in Gestim, the fallibility of human memory is a consideration that the legal system has not yet sufficiently absorbed, despite the robust amount of psychological research available.
What this means for litigants
So, where do the courts stand when it comes to the accuracy of witness testimony?
Indeed, there is a growing recognition that memory can overwrite the facts and details that we do not want to believe – an alarming consideration when trying to gather robust evidence to prove a case in court.
For Lord Justice Popplewell, the answer to untangling conflicting witness evidence lies in the science of memory. On this basis, the many scientific reasons for memories becoming altered ought to be a means to determine the correctness of witness testimony.
Gestim and Wirecard act as a reminder that while oral testimony serves an important purpose, memory is fallible. To this end, contemporaneous documents speaking to the facts are often more helpful to a judge in determining an accurate picture of events.
However, Lord Justice Popplewell's analysis emphasises the remarkable accuracy and reliability memories can offer when speaking to the facts in dispute. In fact, Lord Justice Popplewell goes as far as saying that human recollection has become undervalued by the courts and that too much importance is now placed on the documents prepared after the event in question.
If you have any questions relating to topics in this article, please get in touch with Ben Pilbrow or your usual Shepherd and Wedderburn contact.
This article was co-authored by Trainee Megan McNicoll.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
