Your memory may not be as good as you think it is. Which makes it all the more important to write down, at the time, whatever it is that was said or agreed. Judges dealing with conflicts of oral evidence have the difficult task of assessing the “demeanour” of a witness as a guide to truth and accuracy and the effect on memory of a continued re-consideration of a case and of documents over time. In approaching this task (“with great caution”), the court in Connoisseur Developments Ltd & Ors v Koumis referred to a summary of case law on the courts’ approach, which contained a number of observations, including these:
- We believe memories to be more faithful than they are; memories are fluid and malleable, being constantly rewritten whenever they are retrieved. Events can come to be recalled as memories which did not happen at all or which happened to somebody else.
- The process of civil litigation itself subjects the memories of witnesses to powerful biases; considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by a lawyer who is conscious of the significance for the issues in the case of what the witness does or does not say.
- The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts. The value of oral testimony lies largely in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particu- lar conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.
- Oral evidence under cross-examination is far from the be all and end all of forensic proof and it has increas- ingly been recognised that it is usually unreliable, and often dangerous, to draw a conclusion from a witness’s demeanour as to the likelihood that the witness is telling the truth.
- A witness, however honest, rarely persuades a judge that their present recollection is preferable to that which was taken down in writing immediately after the incident occurred. Therefore, contemporary documents are always of the utmost importance.
The judge in this case noted that the contents of the case summary provide much of the rationale underlying the new regime governing witness statements, and best practice in relation to their preparation, in the Business and Property Courts. Paragraph 1.3 of the Appendix to Practice Direction 57AC says:
“1.3 Witnesses of fact and those assisting them to provide a trial witness statement should understand that when assessing witness evidence the approach of the court is 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.”
