PT-2023-001131 - [2025] EWHC 2728 (Ch)

This is a case where the warning about the unreliability of human memory given by Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm), at [22], is particularly apposite. Walker J explained that the best approach for a judge to adopt was 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 value of cross-examination lay 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 particular conversations or events. The point is not simply that human memories are fallible but that considerable interference with memory is introduced in civil litigation by the very process of preparing for trial, and that a judge should avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provided any reliable guide to the truth.

This is a dispute between family members. The Claimant is the Defendant’s nephew. After a period of estrangement, the Claimant and the Defendant reconnected following the funeral of the Deceased. There then developed a considerable degree of love and affection between them. By way of illustration, the Defendant wrote to the Claimant by text on 12 November 2021, saying “Know too that you can always, always count on me, because you are my family. Thank you for being so close …” This closeness was then replaced by a bitter falling out, with the Defendant, among other things, accusing the Claimant of having lied to her. There is now a high degree of hostility and anger between the parties which colours their recollection of past events.

The Claimant and the Defendant both gave evidence at trial and were cross-examined. There was in evidence a large amount of communications between the parties, in the form of emails, texts and WhatsApp messages. It is these written communications which set the context for the parties’ dealings. Both parties also accept that there were many telephone conversations between them.

Turning to my impression of the witnesses, the Claimant was an honest witness who, despite his current animus towards the Defendant, basically tried to answer the questions put to him in cross-examination. He sometimes got the dates of various events wrong. On at least two occasions, he was on the point of making inflammatory and irrelevant allegations about the Defendant’s character, which I stopped him doing. Subject to those caveats, I broadly accept his evidence.

I found the Defendant to be a less reliable witness. Whilst I do not believe that she was giving dishonest evidence, she gave speeches from the witness box, rather than answering the question. She also, on at least two occasions, gave an answer which she then realised was not helpful and then sought to retract or qualify it. She denied that she was “fickle” (a word she also used in one of her text messages which was in evidence). However, as I explain in greater detail in this judgment, it seems plain that during the period under examination she was considering various options at different times, and did change her mind as to how she wanted to proceed.

I also heard from both the Claimant’s wife, Tsena Canarapen, on behalf of the Claimant, and from the Defendant’s brother, Gerard Maghoo, on behalf of the Defendant. Both witnesses gave their evidence straightforwardly. Neither Mrs Canarapen nor Mr Maghoo can be called independent witnesses. Mrs Canarapen can be expected to support her husband’s claim. Mr Maghoo candidly accepted that recently he had been given money by the Defendant. In the end, I derive only limited assistance from either, because the key discussions were held between the Claimant and the Defendant.

A witness statement was also filed on behalf of the Claimant, from his accountant, Ravinder Gill. The Defendant chose not to cross-examine Mr Gill. His evidence is therefore unchallenged.