In Jaffé v Greybull Capital and others [2024] EWHC 2534 (Comm), Cockerill J highlights the importance of understanding the dynamic nature of memory when assessing the reliability of witnesses’ memories and near-contemporaneous documents.

Summary

In this case, Mrs Justice Cockerill was tasked with determining whether an alleged misrepresentation had been made orally nearly eight years ago in a meeting. In grappling with this question, Cockerill J provided a comprehensive analysis of the science of memory. She concluded that the dynamic nature of memory and the influence of time and context on recall should be taken into account when assessing the reliability of both oral and documentary evidence. She found that the near-contemporaneous note produced by one of the witnesses shortly after the meeting was inaccurate when tested against the facts in the full context.

The approach adopted by Cockerill J in this case will no doubt encourage a more nuanced evaluation of evidence in future cases. Given many commercial cases before the courts often turn on events that occured several years ago, the courts and legal professionals need to have a solid understanding of the science of memory to critically assess the reliability of evidence.

This judgment builds on recent case law (also presided over by Mrs Justice Cockerill) on implied misrepresentation in Loreley Financing (Jersey) No 30 Limited v Credit Suisse Securities (Europe) Limited and others [2023] EWHC 2759 (Comm) and Leeds County Council v Barclays Bank PLC [2021] EWHC 363 (Comm). These cases focus on the challenges in proving reliance on misrepresentations occurring several years ago. For further analysis, please see our article High Court reiterates need to prove reliance on implied misrepresentations.

Background

The case involved allegations of fraudulent misrepresentation made orally during a meeting in 2016. The claimants, represented by the insolvency administrator of Wirecard Technologies GmbH and Wirecard Bank AG, alleged that Mr Marc Meyohas of Greybull Capital LLP made false representations about the source of funds being injected into Monarch Airlines. These alleged misrepresentations were said to have led Wirecard Bank to extend credit to Monarch Airlines, which subsequently became insolvent in October 2017. The Claimants sought approximately £12m in damages.

The case centered around conflicting recollections of the meeting by two equally honest and truthful witnesses. The claimants relied on a near-contemporaneous note of the meeting taken by one of their witnesses, while the defendants argued that the alleged misrepresentations were not made.

Judgment

Cockerill J dismissed the case finding that no misrepresentations were made. Cockerill J provided a detailed analysis of the oral and documentary evidence presented in the case. Of particular interest are paragraphs 195 to 202 of the judgment, where Cockerill J delved into the complexities of memory.

Cockerill J acknowledged the inherent challenges in determining the veracity of oral statements made nearly 8 years ago. Both witnesses realistically accepted that their “unrefreshed memories were either non-existent or unreliable“. The parties agreed that, as recollections can be fallible, the court must also have regard to, in particular, contemporaneous documentation, the parties’ motives and the inherent probabilities.

Approach to contemporaneous documents

The claimants urged the court to rely on the documentary evidence (namely, the near-contemporaneous note of the meeting) to resolve the differences in recollection. Cockerill J acknowledged how the courts have generally regarded contemporaneous documents as far more reliable than oral evidence of witnesses. References were made to Gestmin, Simetra and Avonwick, all of which highlight the merits of reliance on documents over memory. The following well-known passage from Gestmin was recited:

“… 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. This does not mean that oral testimony serves no useful purpose …its value lies largely, as I see it, 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 particular conversations and events.” (emphasis added)

Critical scrutiny of evidence

Focussing on the need to subject both witnesses’ recollections and documentary evidence to critical scrutiny, Cockerill J drew attention to the 2023 COMBAR lecture by Popplewell LJ, titled “Judging Truth from Memory“. This lecture explores the value of recollection, the nature of the fact-finding exercise in commercial litigation, the science of memory and the issues arising from faulty memory encoding.

Cockerill J highlighted several key points from the lecture that are essential for all legal professionals when assessing reliability of evidence:

1. State of mind inquiry: Assessing what the witness knew, believed, or intended is as crucial as determining what happened. This state of mind may be an essential ingredient of the cause of action.
2. Encoding memory: Memory is not a snapshot; it is an interpretation based on our scheme (beliefs, attitudes and experiences).
3. Semantic memory corruption: Our beliefs, attitudes and approach, our worldview, our schema, changes over time. Recollections can be corrupted by the schema at the time of retrieval, making memory of past beliefs unreliable.
4. Pride and wishful thinking: Memory encoding can be influenced by a desire to portray oneself in a positive light.
5. Contemporaneous documents: These documents are subject to the same fallibilities as memories since they are created after the event is encoded. Indeed Poppelwell LJ noted that “contemporaneity” does not necessarily confer primacy or accuracy.
6. Reconstruction from semantic memory: We fill in memory gaps based on what we expect would have happened.

Analysing the meeting note

While it was noted there was a “fairly powerful “classic Gestmin” case to be made” in respect of the near-contemporaneous note, Cockerill J determined that this argument “neglects to take into account the possibility…. of a faulty impression or recollection being encoded at a very early stage and recorded in that document” and that “it itself must be tested against the facts in the full context”. After looking at the full context, Cockerill J concluded that the meeting note was in the critical respect (entirely innocently) inaccurate.

Cockerill J warned that “[w]hile 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.”

Cockerill J noted that the Claimant’s witness was reconstructing what was said in his second language during the lengthy meeting from incomplete handwritten notes. The note was not a live transcription but a reinterpretation of his original notes. Given that the witness came to the meeting with Wirecard’s agenda in mind, it is likely that he encoded and interpreted the conversation in a way that “deviated slightly but significantly” from what was actually said, and that this deviation became entrenched in his memory.

Conclusion

This case underscores the importance of a nuanced evaluation of evidence in commercial litigation. By integrating insights from the science of memory and emphasising the critical examination of both oral and documentary evidence, the judgment reinforces the need for a robust and discerning approach to fact-finding. This approach will undoubtedly influence future cases, ensuring that the courts do not just accept the primacy of contemporaneous documents but subject them to a detailed evaluation in the pursuit of truth amidst the complexities of human memory.

If you would like to discuss the contents of this article further, please contact Lucinda Orr or Jo Pagan.