Case No. EWHC-1798-(IPEC)

[2013] EWHC 3560 (Comm) (‘Credit Suisse’), from [19]. I do not need to set those observations out in full, but note particularly the comments at [22] that the best approach in the trial of a commercial case is to base factual findings on inferences drawn from the documentary evidence and known or probable facts. The value of oral testimony is ideally “to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness”.41.In a case such as this, where almost all the witnesses are personally involved (this applies in particular to Mr Williams, Mr Clarke and Mr Richardson), Leggatt J’s observations in Credit Suisse on the fallibilities of human memory and the distorting effect of the litigation process are particularly important:“The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.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 (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.” [19] and [20]42.Notwithstanding the adoption of Practice Direction 57 AC, which deals with the preparation of witness statements for use at trial, the potential problems with witness evidence arising from the process of civil litigation itself, as identified in Credit Suisse, have not been eliminated.43.The difficulties of assessing the witness evidence are compounded by the uneven documentary record. Some of the documents which do exist are said by some of the parties to be misleading in themselves or to have been entered into as a result of a misrepresentation. The Defendants’ case, in particular, relies principally on oral evidence with a lack of contemporaneous supporting documentation. As a result, while some factual findings can be made by reference to the contemporaneous documents, it has been necessary to assess the reliability of the witness evidence also by reference to other considerations.44.The relatively recent Judgment of HHJ Richard Williams, sitting in the Business and Property Courts in Birmingham, in