[2025] UKUT 00185 (TCC)

In Roberts v FCA [2015] UKUT 408 (TCC) at [36] the Tribunal said:

“We bear in mind the dangers of hindsight, which include analysing each conversation or note line by line, and attributing greater significance to such matters in the light of subsequent events, instead of considering matters as participants saw them as they occurred, or assuming that what happened subsequently was bound to happen.”

In reliance on that passage, Mr Jaffey submitted that “caution should…be exercised” when considering contemporaneous documents. However, in the well-known judgment of Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) (“Gestmin”), Leggat J (as he then was), said:

“[17] …psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. …External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection.

[18] 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….

[19] 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…

[20] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial…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.

[21] …

[22] In the light of these considerations, 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.”

In Simetra Global Assets Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413, Males LJ gave the only judgment with which Jackson and McCombe LJJ both agreed. He said at [48]:

“In this regard I would say something about the importance of contemporary documents as 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. That applies to documents passing between the parties, but with even greater force to a party’s internal documents including emails and instant messaging. Those tend to be the documents where a witness’s guard is down and their true thoughts are plain to see. Indeed, it has become a commonplace of judgments in commercial cases where there is often extensive disclosure to emphasise the importance of the contemporary documents. Although this cannot be regarded as a rule of law, those documents are generally regarded as far more reliable than the oral evidence of witnesses, still less their demeanour while giving evidence.”

Two months later, in Kogan v Martin & Ors [2019] EWCA Civ 1645, Floyd LJ, giving the judgment of the Court, said at [88]:

“…Gestmin is not to be taken as laying down any general principle for the assessment of evidence. It is one of a line of distinguished judicial observations that emphasise the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed.…a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence. Heuristics or mental short cuts are no substitute for this essential judicial function. In particular, where a party’s sworn evidence is disbelieved, the court must say why that is; it cannot simply ignore the evidence.”

In Tui v Griffiths [2023] UKSC 48 (“Tui”), Lord Hodge, giving the only judgment with which the other members of the Supreme Court agreed, said at [70]:

“(i)

The general rule in civil cases, as stated in Phipson, 20th ed, para 12-12, is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses.

(ii)

In an adversarial system of justice, the purpose of the rule is to make sure that the trial is fair.

(iii)

The rationale of the rule, ie preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness.

(iv)

Maintaining the fairness of the trial includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy…

(v)

Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself.

(vi)

Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty.

(vii)

The rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule…Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial. Thus, where it would be disproportionate to cross-examine at length or where, as in Chen v Ng, the trial judge has set a limit on the time for cross-examination, those circumstances would be relevant considerations in the court’s decision on the application of the rule.

(viii)

There are also circumstances in which the rule may not apply: see paras 61-68 above for examples of such circumstances.”

Most of the “circumstances” referred to in paras 61-68 of Tui are specific to expert evidence, but they also include matters “to which the challenge is directed is collateral or insignificant and fairness to the witness does not require there to be an opportunity to answer or explain”, or where the “evidence of fact may be manifestly incredible, and an opportunity to explain on cross-examination would make no difference”.

In assessing the evidence in this case, we have sought to follow the guidance set out in the above case law, noting that most of the events with which we are concerned took place in 2018, seven years before this hearing, and that there is contemporaneous evidence relating to most of the events in question, including emails and internal reports.