Deciding between competing factual recollections

The starting point for Cockerill J was that the passage of time affected the reliability of the respective witnesses’ recollection, with the witnesses themselves accepting that their “‘unrefreshed’ memories were either non-existent or unreliable”.

In considering the competing factual accounts, Cockerill J considered and drew authority from four sources:

1. The oft-cited passage from Gestmin SGPC SA v. Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [22] that:

(a) The best approach for a judge in the trial of a commercial case is to place little, if any, reliance on witnesses’ recollections of what was said in meetings and conversations.

(b) Factual findings should be based on inferences drawn from documentary evidence and known or probable facts.

(c) The value of oral testimony is that it allows one to scrutinise the documentary record, and to gauge the personality, motivations and working practices of a witness.

(d) Where a witness has confidence in their recollection and is honest, that does not in and of itself make their evidence true.

2. The observation in Simetra Global Assets Ltd v. Ikon Finance Ltd [2019] EWCA Civ 1413 at [48] that contemporary documents are a “means of getting at the truth, not only of what was going on, but also as to the motivation and state of mind of those concerned”. Internal documents passing between the parties, such as emails and instant messages, demonstrate the “true thoughts” of a witness, created when their “guard is down”. For this reason, in Simetra Males LJ explained that, although not as a rule of law, contemporary documents are regarded as “far more reliable than the oral evidence of witnesses, still less their demeanour while giving evidence”.

3. Caselaw demonstrating that a further reason to attach particular weight to the documentary evidence is “where the factual evidence is given by persons not in their first language or through an interpreter [as it] can lead to difficulties in making any assessment of demeanour and [can] give rise to issues where a witness looks evasive because of miscommunications”. [199]

4. The lecture given by Popplewell LJ to the Commercial Bar Association, entitled “Judging Truth from Memory”. From this lecture, Cockerill J noted the following at [201]:

(a) Commercial litigation often involves an inquiry into a witness’s state of mind. Generally, it matters what the witness knew, or believed, or was thinking or intended at a particular point in the narrative of events “because that casts light on the events themselves. Fact-finding is concerned not only with what happened, but just as much with why it happened.”

(b) Memory is a product of interpretation. Interpretation uses a person’s ‘schema’ – “experience and expertise can make a big difference to what goes into our memories…we don’t see things as they are, but as we are”.

(c) Memory can also be corrupted at the retrieval stage, as our beliefs, attitudes and approach, worldview and schema change over time. The schema at the time of memory retrieval can, therefore, affect the memory recollection itself. As noted in Gestmin: “Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs.”

(d) Memory is influenced by the universal tendency to want to portray participation in events in the best light. This can affect how a witness pictures events to themselves, even when first encoding the memory.

(e) Our memories fill in gaps by reference to what we assume we would or would not have done, even if this is not the case – “We like to suppose that we did or thought that which we now consider we ought to have done or thought.”

(f) Importantly, contemporaneous documents can be produced near the time, but are only produced after the memory is encoded. Therefore, if there is a fallibility in memory recollection, this will affect the contemporaneous document.

With this conceptual framework laid out, Cockerill J set out to decide between the accuracy of the accounts given by the two witnesses as to whether the alleged representations were made. She acknowledged that both witnesses had given truthful evidence (truthful here meaning ‘honest’ rather than ‘accurate’).

The key document that the witnesses had provided evidence on was the Note, taken by a witness at a pivotal meeting in the life of Monarch Airlines. The claimants argued, citing Gestmin and the fallibility of recollection, that this Note trumped other sources. More specifically, Cockerill J noted that the following case could be quite powerfully made on the following principles from Gestmin:

i) Gestmin broadly urges the primacy to be given to the written contemporaneous record;
ii) the Note was a written record, which although not fully contemporaneous, had many of the features of a contemporaneous record in that it derived from “a fairly speedy writing up of truly contemporaneous notes”;
iii) the witness who wrote up the Note had manuscript notes as a base and spoke to only one other person before doing so;
iv) the witness was “transparently honest”, and was accepted to be diligent and thorough; and
v) it was accepted by the defendants that in the main the Note was an accurate summary of things which were said at the meeting and that therefore, as a note, it was “overall reliable”.

Despite this seemingly compelling case, Cockerill J noted that this line of argument did not take into account the possibility “of a faulty impression or recollection being encoded at a very early stage and recorded in that document”. For this reason, Cockerill J tested the Note against the facts in the full context. This context included not only what was common to both parties in terms of knowledge at the time of the meeting, but also what, if anything, the parties were each focusing on that was not communicated to the other side. The reason for this was that, in relation to the Note, it could have affected the encoding and recording of what was discussed during the meeting, or may have influenced how the individual alleged to have made the representations expressed themselves in the meeting.

This led Cockerill J to consider, in great detail, the nature of the discussions had at the meeting, the background to what was said, the negotiating positions of the parties, what was known (apart from the Note) as to what was said, the counterfactuals and motives for making the alleged representations, the questions asked in the meeting, and “the short distance between ambiguity and inaccuracy”. Following this detailed analysis, despite the wording of the Note, she concluded that the Note was not evidence that the alleged representations had been made at the meeting. Further, Cockerill J concluded that the remaining evidence relied upon to establish the representations also did not assist the claimants in proving that the alleged representations had been made. In reaching this conclusion, the judge made the following remarks at [285-286]:

“I conclude that [this] record is in the critical respect (entirely innocently) inaccurate. Mr Hilz was reconstructing what was said in his second language from handwritten notes which were necessarily incomplete. It was a fairly lengthy meeting. The Note is not the live transcription with which we have been blessed at trial. It is a reinterpretation of his manuscript notes which he took at the time. The format of the note suggests that those manuscript notes were sketchy and not word for word…there is scope for ‘Chinese whispers’ both in the taking of a note and in its interpretation, particularly when there is discussion immediately afterwards. While 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.”

Conclusion

• This case sets out an interesting set of factors that can be used in critiquing documentary evidence that is adduced in the context of litigation.
• It also serves as a cautionary tale around basic corporate housekeeping points, such as, at a minimum, keeping clear notes of meetings that are finalised immediately after or as close as possible to the actual event wherever possible.
• Ultimately, this case demonstrates the intricate role that memory plays in the creation of contemporaneous documents and highlights a difficulty we all must reckon with: the inevitable “fallibility of recollection”.

In-depth 2025-213