How does a court decide which of two "equally patently honest and truthful witnesses" to believe? This was the question faced in the recent case of Jaffe & another v Greybull Capital LLP & Others [2024] EWHC 2534 (Comm), where the central issue was whether fraudulent misrepresentations had been made at a meeting almost eight years ago. The usual approach in such cases is to fall back on contemporaneous documents (where they exist). However, this case demonstrates that even contemporaneous notes can be vulnerable to the fallibility of memory.
The case was described by the judge as "in some respects a classic one" in that it involved a clash of recollection between two sets of witnesses as to the content of oral statements made at an in-person meeting several years ago. However, what made the case more unusual was the fact that the two witnesses whose recollections clashed had both been found by the judge to be excellent witnesses, whose evidence she had no hesitation in accepting as honest and truthful; "I have no doubt the individual witnesses' truths – in the sense of what they either do (now) recall or what they honestly think they recall – are simply different."
This reflects a theme that we discussed in depth in our Dishonesty Uncovered series - that even an unreservedly honest witness can be recounting events inaccurately.
The conflicting accounts in this case could therefore not be resolved simply by assessing the credibility of each witness. There was, however, a contemporaneous note of the meeting, which had been written up shortly after the meeting and was based on a manuscript note taken at the meeting by one of the witnesses.
The court's general approach to fact-finding is to place greater reliance on contemporaneous documents than on witnesses' recollections, given the issues around the fallibility of memory – an approach articulated in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm). One way of resolving the case would therefore have been to conclude that the contemporaneous note trumped the witnesses' account of events. However, as the judge pointed out, this would neglect to take into account the possibility "of a faulty impression or recollection being encoded at a very early stage and recorded in that document".
The judge referred to the lecture given by Popplewell LJ to COMBAR in 2023 – "Judging Truth from Memory" – which explored important points surrounding the science of memory and how memories are encoded. This is again a theme we explored in the first of our series of articles, in which we explained that when we encode memories, we do so through the lens of knowledge and expectation derived from prior experiences. What we already know and have stored in our memory directs our attention to the specific aspects of the current experience that we think are important when understanding what that experience means for us in the here-and-now, as well as possible consequences later down the road. Thus, what gets encoded and stored in memory is not a direct copy of the experience itself, but rather, our interpretation of that experience and how it is relevant to us.
As Popplewell LJ explained in the COMBAR lecture, "….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".
It was for these reasons that the judge concluded that whilst the contemporaneous note could be taken as the basis for a compelling argument, "it itself must be tested against the facts in the full context". That included considering what was common to both parties in terms of knowledge, but also what (if anything) the parties were each focusing on which did not get communicated to the other side, which might affect both encoding and recording or which might affect how particular individuals expressed themselves.
The judge therefore considered a number of factors, including the motives, the inherent probabilities and the counterfactuals. Having done so, the judge concluded that the contemporaneous note was "in the critical respect (entirely innocently) inaccurate…. It is likely that coming to the meeting with Wirecard's discussed agenda in his mind Mr Hilz 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 accuracy became entrenched."
The implications for how contemporaneous documents will be viewed in future cases are interesting. Some may argue that all contemporaneous records will inevitably reflect the understanding and perception of the note taker and may contend that differing records are not necessarily attributable to "encoding" errors. It is a difficult and complex area that must be carefully navigated and which leads on to a further note of caution for future cases. It is very rare in civil cases in England for parties to adduce expert evidence on memory. Absent such evidence, it is incumbent on parties and their legal representatives to ensure that submissions are based squarely within established principles and do not transgress into conjecture which may not, if tested, be supported by the scientific research.
Overall, the judgment is likely to be welcomed for its recognition of the way that memory works and its limitations. As we championed in the third of our series of articles, it is important for judges and legal representatives to have a full appreciation of these limitations when preparing and assessing witness evidence. This case clearly highlights that, although contemporaneous documents are considered to be more reliable than the recollection of individual witnesses, even contemporaneous documents have their limitations and can still be vulnerable to encoding fallibilities. It is however important to remember that, once recorded, contemporaneous documents will remain impervious to the storage or retrieval fallibilities that will continue to affect an individual's recollection, such as the incorporation of post-event information or cross-contamination explored in the second of our series of articles. In many cases, the contemporaneous documents are therefore likely to remain more reliable than individual witness recollections and will continue to be an important element in the fact-finding exercise that the Court must undertake.