Memory and the documentary record in cases involving disputes of fact

In this post James Beeton of 12 KBW discusses the decision of HHJ Gore QC (sitting as a Deputy High Court Judge) in  CXB v North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB), a clinical negligence claim involving a disputed documentary record.

The case is of particular interest because of the judge’s concerns about what has become the conventional approach to human memory in cases involving disputes of fact developed in the judgment of Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15] to [23]. The judge’s comments about that approach have recently received support in the Court of Appeal’s unanimous judgment in Kogan v Martin and Ors [2019] EWCA Civ 1645. This article will argue that the judge’s concerns were overstated and that the result in CXB was consistent with a correct application of the Gestmin principles.

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