In 2013 the High Court commercial case of Gestmin v Credit Suisse came before Mr Justice Leggatt who was tasked with evaluating the evidence of a number of witnesses concerning various events that took place over a number of years. In an interesting judgment, Leggatt J considered the psychology of recollection, psychological research and what we know about the fallibility of human memory.
As the Judge commented (at paragraph 20), “Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often…when a long time has already elapsed since the relevant events…The statement is made after the witness’s memory has been “refreshed” by reading documents….the witness’s memory of events [is over time] based increasingly on [written material] and later interpretations of it rather than on the original experience of the events.”
The mere fact that a witness is confident in their recollection does not mean that their recollection will be accurate and this is, said the Judge, particularly true when it comes to recalling past beliefs.
The conclusion of Leggatt J, at paragraph 22, was that “the best approach for a Judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.” The real value of oral evidence, as the Judge saw it, was its role in subjecting, by way of cross-examination, documentary evidence to scrutiny.
Since then the principles set out in Gestmin have been applied and considered in a number of cases and Leggatt J’s reminder of the need to approach witness recollection with caution is, no doubt, borne in mind by Judges at all levels of our trial system.
More recently key elements of the Gestmin principles have in fact been written into the Civil Procedure Rules, in the form of paragraph 1.3 of the Appendix to Practice Direction 57AC (Witness Evidence at Trial) which concerns trial witness statements in the Business and Property Courts. The Appendix amounts to a “Statement of Best Practice” and whilst it only explicitly applies to hearings in the Business and Property Courts it contains helpful reminders and guidance to all practitioners regarding the purpose and appropriate content of trial witness statements as well as the way that written witness evidence should be obtained. Indeed, paragraphs 2 and 3 of the Practice Direction itself contain further guidance and is worth a read by all practitioners and litigants in person.
Gestmin was of course a commercial case in which, as is usual, there were vast reams of contemporaneous documents to consider alongside the oral witness testimony. Therefore, and whilst the judgment contained some useful commentary on general principles, Leggatt J’s conclusion that witness recollection should effectively be considered a “secondary” source of evidence was reached in the context of those particular circumstances.
How then, or even whether, to apply the broader Gestmin principles in cases of a different nature?
In the recent case of Barrow & Ors v Merrett & Anor  EWHC 792 (QB) the court was asked to apply Gestmin in the context of a personal injury claim arising from a serious road traffic accident.
In Barrow the 11-year old Claimant and his schoolfriend had been crossing the road when the Claimant was hit by a car, sustaining serious and life-changing injuries. The two key factual questions for the court were (1) whether the Claimant had been running or walking across the road and (2) what his body position had been at the point of impact (the Claimant stating that he slipped back whilst walking and the Defendant’s case being that he had been running and slipped forward).
Neither the damage to the car nor the Claimant’s injuries provided any real assistance to the court to answer the two key questions. Instead the court had to rely on witness testimony and accident reconstruction and police reports. By the time the matter came to trial, more than 5 years had passed since the date of the accident. The only eyewitness for the Claimant was his schoolfriend Nicholas. Nicholas had given no less than 5 differing accounts of the incident and whilst it was not alleged that he was dishonest it appears to have been accepted by all parties that his recollection was not entirely reliable. The Claimant’s approach was therefore to seek to persuade the Judge that he should follow the Gestmin principles and treat Nicholas’ testimony as merely a “secondary” source of evidence against the more (so said Claimant’s counsel) “objective” and reliable expert evidence and accident reconstruction reports. In giving judgment the Judge (Richard Hermer QC sitting as a Deputy High Court Judge) commented at paragraph 8 that, “There are many claims arising out of accidents…in which it is simply not possible to conclude with absolute precision what occurred. The law does not require the Court to do so. The task for the Court is not to reach a conclusion based on “certainty” as to what occurred but rather to come to a reasoned view as to the most probable explanation.”
The Judge, in rejecting the Claimant’s reliance on Gestmin, concluded that the case had not set down a “fixed rule of interpretation applicable to all commercial cases, let alone all cases in which there is a dispute of fact.” Going further, he stated (at paragraph 34) that in a personal injury claim the existence of documentation or “objective” evidence such as vehicle damage does not entitle the Court to “overlook the importance of eyewitness evidence”. In any event, where expert evidence and accident reconstruction reports rely heavily on the recollection of witnesses (as in the Barrow case) the expert evidence cannot truly be said to be “objective” and is not “capable of being neatly divorced from the witness evidence.”
Therefore and whilst the Judge accepted Leggatt J’s general observations in Gestmin as to the correct approach to witness testimony he concluded at paragraph 38 that in applying those general principles “often (but not always) accounts given at the scene will be more reliable than versions given some time later as part of litigation”
Whilst the point taken by the Claimant’s legal team was ultimately unsuccessful (the claim being dismissed on the basis that the Judge was not persuaded that it was more likely than not that the Defendant driver had sufficient time to see the Claimant and take action to avoid hitting him) it was an inventive approach to the situation faced by many lawyers when witnesses give differing and sometimes confused accounts of the same incident.
What the case has done is to reemphasise the importance of clear and convincing eyewitness testimony in cases where the court is unable to fall back on documentary evidence to plug gaps in recollection. In order to best serve clients who might have to give evidence a number of years after the events giving rise to their claim, some gathering of witness evidence (if only in the form of a clear written account from the client) should take place at as early a stage as possible.
The civil barristers at 1COR Brighton are regularly instructed to advise on evidence and to draft witness statements and the clerks in Chambers are of course able to assist clients as to which members of the team are available and best suited in any particular case.