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.

Background

The Claimant claimed damages against the Defendant NHS Trust for the consequences of alleged negligence in the management of aspects of her mother’s pregnancy and her birth. The Defendant admitted that: (i) if the Claimant’s mother had chosen at any stage delivery by way of elective caesarean section then her choice would have been agreed and (ii) this would have resulted in delivery that would have avoided the damage.

The Claimant’s case was that her mother had in fact elected to have a caesarean section but that this election had been rejected. The Defendant denied this on the strength in particular of a clinical note by a senior registrar from 12 days before the birth stating:

“Discussed mode of delivery at length. Patient keen for IOL” (Induction of Labour). “IOL booked at term. Above discussed with [the Consultant in charge of the clinic]. Plan ANC 2/52 …” (meaning anti-natal clinic in 2 weeks’ time) “… to discuss further issues, if any, re mode of delivery.”

The Claimant’s mother and her husband denied that the note was accurate and maintained that she had elected to have a caesarean section. Master Yoxall directed that liability was to be tried as a preliminary issue.

Decision

Although he accepted that the Claimant’s witnesses had given their evidence honestly, HHJ Gore QC (sitting as a Deputy High Court Judge) nonetheless rejected it:

“The difficulty is that their evidence is not internally, or externally, consistent and, in some cases, has changed over time, and is not entirely consistent with the content or tone of the records.”

• In her witness statement, the mother said that she had mentioned that she wanted a caesarean section every time she saw a midwife or doctor. But, in her oral evidence, she qualified this by explaining that she had stated that she simply wanted what was safest for the babies. She also said that she had not in fact made up her mind on delivery until her 36-week scan – despite her written evidence indicating that a caesarean section had always been her intention.

• Although there were many opportunities for the mother’s delivery preference to be recorded, it had never in fact been so recorded – whether by the mother taking the opportunity to write her preference in a box specifically for this purpose on the personal maternity record, or by the midwife or consultant following various meetings to discuss the pregnancy.

• The implication of the Claimant’s case was that the medical professionals had acted dishonestly in recording that the mother had been “keen” for the induction of labour and in misrepresenting the true position to the consultant in charge of the clinic. The judge was impressed by the Defendant’s witnesses and rejected this proposition.

The Gestmin principles

The wider point of interest in this case is in HHJ Gore QC’s discussion of the role of human memory and the documentary record in disputes of fact.

What are the principles?

The Defendant had relied on Leggatt J’s discussion of the unreliability of human memory in Gestmin. The key points are these:

(i) We believe memories to be more faithful than they are. The strength of a memory or the confidence of a person in its accuracy are not reliable indicators of accuracy.

(ii) Memories are fluid and malleable, being constantly rewritten whenever they are retrieved. There is no true distinction between recollection and reconstruction. This is true even of so-called “flashbulb” memories of particularly unpleasant, shocking, or traumatic events.

(iii) 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. Events can come to be recalled as memories which did not happen at all or which happened to somebody else.

(iv) The process of civil litigation itself subjects the memories of witnesses to powerful biases. The court must be aware of these biases.

(v) Considerable interference with memory is introduced in civil litigation by the very procedure of preparing for trial by exposure to argumentative documents such as the statements of case as well as through the drafting and redrafting of a witness statement.

Leggatt J concluded that the best approach was to place little if any reliance on witnesses’ recollections of what was said in meetings and conversations, and instead to base factual findings on inferences drawn from the documentary evidence and known or probable facts. However, oral evidence did still have a role: its value lay “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”.

Endorsement of the principles in later cases

As Leggatt J noted in his later judgment in Blue v Ashley [2017] EWHC 1928 (Comm) at [68], the Gestmin principles had since been supported in other cases by the evidence of psychologists or psychiatrists who were expert witnesses and outside the context of litigation by two academic psychologists in a published paper. They had also been endorsed by a number of judges in “a long list of cases”. Some recent examples include:

• Lachaux v Lachaux [2017] EWHC 385 (Fam); [2017] 4 WLR 57: Mostyn J shared Leggatt J’s “misgivings” about relying on remembered accounts of past events in relation to disputes of fact and preferred to rely on the documentary record: “In my judgment, I should first rely on the contemporary documents.”

• Kimathi & Ors v The Foreign and Commonwealth Office [2018] EWHC 2066 (QB) at [95]–[96]: Stewart J set out the principles in his lengthy judgment in the Kenyan Emergency Group Litigation, which he described as having “helpfully crystallised and advanced learning in respect of the approach to evidence”.

• R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 3) [2018] UKSC 3; [2018] 1 WLR 973 at [103]: Lord Kerr expressly approved Leggatt J’s conclusion in Gestmin in his dissenting judgment.

• Ollosson v Lee [2019] EWHC 784 at [86]–[88] and Mordel v Royal Berkshire NHS Foundation Trust [2019] EWHC 2591 (QB) at [20]: in both of these recent clinical negligence cases the judges explained that they were applying the Gestmin principles in their assessment of witness credibility (the judge in Mordel doing this indirectly by reference to Ollosson).

Historical importance of documentary evidence in disputes of fact

The importance of the documentary record to the resolution of disputes of fact is not new. It has been emphasised on numerous occasions at the highest level in cases stretching back over many years. In the course of his dissenting judgment in the House of Lords in Onassis v Vergottis [1968] 2 Lloyds Rep 403, 431, Lord Pearce commented that

“It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.”

Robert Goff LJ echoed those views in Armagas Ltd v Mundogas SA [1985] 1 Lloyd’s Rep 1, 57, a case concerning allegations of fraud:

“It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, references to the witness’ motives and to the overall probabilities can be of very great assistance to a judge in ascertaining the truth.”

Lord Goff (as he went on to become) reiterated the comments he had made in Armagas Ltd in Grace Shipping v Sharp & Co [1987] 1 Lloyd’s Rep 207, 215–6 (a decision of the Privy Council), adding that “memories may very well be unreliable; and it is of crucial importance for the Judge to have regard to the contemporary documents and to the overall probabilities.”

Writing extra-judicially in 1985, Sir Thomas Bingham (later Lord Bingham) commented that the “normal first step” in cases involving conflicts of evidence was the assessment of the consistency of the witness’s evidence with what is shown by other evidence to have occurred:

“In many cases, letters or minutes written well before there was any breath of dispute between the parties may throw a very clear light on their knowledge and intentions at a particular time.”

And in his June 2012 statement in relation to the collapse of the Farepak litigation, Peter Smith J commented at [71] that contemporaneous documentation is the “first port of call in any case” in assessing consistency and motive.

HHJ Gore QC’s concerns about Gestmin

In CXB, HHJ Gore QC was concerned that it was “becoming the fashion” to “rely on and repeat intrusions into this difficult area [i.e. the unreliability of memory] by various judges, so as to give the appearance of authoritative statements of principle.” This, he warned, was an approach “fraught with danger”. His view was that Leggatt J’s remarks had to be treated with caution for four reasons:

• No authority for or legal analysis of the remarks had been provided or relied on either in Leggatt J’s judgment or before the court in CXB.

• Insofar as these remarks are based upon the nature of memory, no expert evidence and no relevant professional literature informed or were evaluated in expressing the remarks recorded. HHJ Gore QC was therefore

“far from satisfied that medical or other professionals learned in the understanding of memory would accept without qualification, without question or as trite, all of the observations contained in these remarks.”

• It was relevant to consider the context in which the remarks were made. They arose in the context of an issue of fact in a commercial case about whether a relevant witness should be regarded as bound by his signed statement of investment objectives. By contrast, the record in CXB had not been produced by the mother or her husband.

• The argument was based on a presumption that the writing in question was accurate and reliable. There was no dispute about that in Gestmin, whereas in the case before HHJ Gore QC the accuracy and correctness of the writing relied on was disputed.

In his view, the principles did not provide any general assistance in respect of the proper role of the judge in cases involving a disputed documentary record. That role, as he understood it, was to decide

“whether, when the evidence is viewed as a whole, there is material that justifies the conclusion that the clinical record is unreliable or incorrect or whether, when the evidence is viewed as a whole, there is material that justifies the conclusion that the witness evidence to the contrary is unreliable or incorrect … All that the decided cases to which I have made reference do is to remind judges that care has to be taken in making these assessments, and full and proper reasons have to be given for the conclusions reached”.

Support by the Court of Appeal

At first instance in Kogan v Martin and Ors [2017] EWHC 2927 (IPEC), HHJ Hacon had interpreted Leggatt J’s statements in Gestmin and Blue as

“an admonition that the best approach for a judge is to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations and instead base factual findings on inferences drawn from documentary evidence and known or probable facts”.

He proceeded to make a number of findings exclusively by reference to inferences drawn from agreed and documentary evidence, disregarding certain assertions made by Ms Kogan in her witness evidence.

The Court of Appeal held that this approach had been “a very serious error”. Endorsing the comments of HHJ Gore QC in CXB, the Court of Appeal noted that

“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. Earlier statements of this kind are discussed by Lord Bingham in his well-known essay The Judge as Juror: The Judicial Determination of Factual Issues (from The Business of Judging, Oxford 2000). But 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.”

Furthermore, HHJ Gore QC had been correct to note the difference in the circumstances of the case before him as compared with Gestmin. The Court of Appeal considered that “the observations in Gestmin were expressly addressed to commercial cases.” By contrast, Kogan involved two private individuals living together for much of the relevant time: this made it “inherently improbable” that details of all their relevant interactions would be fully recorded in documents.

The Court of Appeal ultimately considered that it had no alternative but to order a retrial:

“The judge has adopted an erroneous approach to the evidence, failed to make important findings of primary fact, failed to take account of material matters and applied incorrect legal standards to the assessment of the sufficiency of Ms Kogan’s contributions. In those circumstances, and with reluctance, we see no escape from the conclusion that there must be a retrial.”

Comment

HHJ Gore QC’s approach was consistent with the proper application of the Gestmin principles

HHJ Gore QC’s conclusion that it was necessary to subject the documentary record to careful scrutiny by reference to the witness evidence is consistent with both the Gestmin principles and the historical emphasis on the importance of written evidence.

Leggatt J’s remarks in Gestmin were carefully qualified to show that they were not intended to elevate documentary evidence above oral evidence, particularly where there is a disputed documentary record. Consistently with his approach, if the court considers that a witness’s evidence is reliable despite being in apparent conflict with the documentary record, it “should not shrink from making such a finding.” In such circumstances the court should, however, give clear reasons as to why the oral evidence is preferred to the documentary.

The proposition that a contemporaneous clinical record is inherently likely to be accurate does not create any presumption in law that has to be rebutted. It is simply “an important factor in evaluating the material so that reasoning is necessary to explain how records (or their absence) are being treated on the facts of a particular case.” An understanding of the context in which the record was produced therefore remains of critical importance. As Yip J put it in a recent case:

“Very often medical records do provide the best evidence of what was happening at the time. However, they are not infallible, and they must be weighed and tested just as other evidence is.”

In carrying out the “weighing and testing” exercise, evidence given under cross-examination remains the “gold standard”. It is on this basis that “eyewitness account honestly given will trump a post-hoc interpretation at a distance based on medical notes which seldom give the fullest most detailed accounts”. In Kogan, it was the trial judge’s failure adequately to explain the reasons for rejecting the oral evidence that led him into error.

The CXB judgment contains its own implicit assumptions about human memory

With respect, HHJ Gore QC’s rejection of the Gestmin approach to memory as irrelevant to his decision (and the apparent endorsement of this position by the Court of Appeal in Kogan) is difficult to reconcile with the following unexplained statement which is central to the reasoning in the judgment as a whole:

“there is no evidential basis for suggesting that any of the claimant’s witnesses were untruthful or deliberately misleading the court. That does not mean that their evidence should be accepted, even if they express their recollections to be firm and clear.”

Implicit in this statement are the propositions that (i) human memory is fallible such that honestly held beliefs may be inaccurate and (ii) the firmness or clarity of the recollection is not a reliable indicator of accuracy.

These propositions are of course key elements of the more sophisticated approach to human memory set out in Gestmin. The difference is that the assumptions in HHJ Gore QC’s judgment about human memory are implicit, whereas in Leggatt J’s judgment they are explicit.

In Kogan, the Court of Appeal characterised Gestmin as

“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.”

But this begs the question of what assumptions the court should be making about (i) the ways in which, and why, human memory may be fallible in disputes of fact and (ii) depending on the answer to that, what exactly is the “proper place” of witness evidence in disputes of fact involving a documentary record? The approach of the Court of Appeal leaves it to the trial judge to decide these matters on a case-by-case basis; the endorsement of CXB indicates that the judge’s answers to these questions need not be made explicit.

But there are three obvious advantages to the Gestmin approach of setting out the assumptions that are being made:

• First, it provides guidance to parties dealing with factual disputes about how those disputes are likely to be adjudicated. This enables the parties to anticipate what assumptions the judge is likely to make when approaching a factual dispute or to produce evidence challenging the prevailing orthodoxy if they believe it is wrong.

• Second, it provides clarity about the assumptions the judge has in fact made when coming to a decision in a particular case. This helps the parties to understand the judgment and, if those assumptions can properly be challenged, to know whether to appeal.

• Third, it signals to other judges the factors that one judge has thought important in determining a factual dispute.

HHJ Gore QC was clearly right to warn of the dangers of simply following a formula without regard to the particular features of the case. And the Court of Appeal was correct to point out the even greater dangers that may arise where the misapplication of a formula results in a lack of critical engagement with the evidence by the judge.

But, in circumstances where the courts are already making – and are, in fact, encouraged by the higher courts to make – assumptions about human memory, it is surely desirable that there should be express judicial engagement with what those assumptions are. The alternatives are that trial judges must either reinvent the wheel in every dispute of fact on a “common-sense” basis or take into account factors identified in other cases without saying they are doing so. Neither is constructive.

The concerns in more detail

It is difficult to accept the proposition that the principles set out by Leggatt J lack any support in the cases. The historical centrality of the documentary record in cases of the highest authority is explicitly premised on the fallibility of the memory of even honest witnesses. Gestmin does not subvert this principle but represents a sophisticated judicial attempt to understand and explain the basis for it.

Emphasis is placed on the distinctions between the particular facts of Gestmin and of the later cases in which it has been applied as against the circumstances in CXB. Similar comments were made by the Court of Appeal in Kogan. It is correct that account must always be taken of the individual circumstances of the case. It is also correct that consideration of the Gestmin principles does not excuse a judge from making findings of fact based on the evidence as a whole. But the principles are not tied to any particular factual matrix: they are expressed as observations on the nature of memory generally. The courts have had no qualms in applying Robert Goff LJ’s analysis in Armagas Ltd (a complex commercial dispute concerning the sale and leaseback of a vessel) to disputes of fact in personal injury claims:

“Although Lord Goff was there referring to cases involving fraud, his remarks hold good for any case in which a witness’s credibility is a central feature.”

On the other hand, HHJ Gore QC’s observation that there may be a range of opinion from medical professionals as to the correctness of the principles is a fair one. It is therefore right that the principles should be capable of amendment or challenge as the modern understanding of memory develops. Indeed, Leggatt J himself added to the principles in Blue on the basis of updated medical understanding.

But the force of this criticism is blunted somewhat by the fact that (i) the Gestmin principles are consistent with the assumptions apparently being made by judges in many disputes of fact anyway (including CXB itself), (ii) the principles have in fact been endorsed by experts in memory and therefore may be said to represent a reasonable working model, and (iii) the alternative is for the assumptions to remain unstated and more difficult to challenge or to develop in later cases.

Conclusion

The conclusion in CXB is consistent with a conventional application of the Gestmin principles. HHJ Gore QC recognised that the written record could be overcome if he were satisfied that the contrary evidence of the Claimant’s mother and her husband was reliable. However, he also recognised that human memory is not always accurate and that the fact that witnesses may be sure in their recollection is not a necessary indicator that it is correct. These factors fed into the analysis of whether there was sufficient material to justify his ultimate conclusion as to whether the clinical record was incorrect.

HHJ Gore QC’s concerns about the broader reliance on the Gestmin principles are overstated. There are good reasons for judges to engage with and to make explicit the assumptions they are making about human memory when deciding disputes of fact. In particular, it allows the assumptions to be understood, criticised, and challenged. The Gestmin principles represent a reasonable working model in this respect. But that is not to say that they are incapable of amendment or improvement as medical knowledge develops. The comments of the Court of Appeal in Kogan are therefore best understood in the narrow context of an erroneous misapplication of the principles by the trial judge in that case. In this respect, HHJ Gore QC was correct to warn against treating the principles as a shortcut justifying a lack of critical engagement with the totality of the evidence.