Island hopping and recalling past beliefs

January 12, 2023

By David Sandiford

I began the process of writing this piece with the intention of drawing attention to a further useful decision of the CA in a pedestrian versus vehicle claim, an area of my practice on which I have written and presented previously.

The decision is Barrow (by his LF) and Ors v Merrett & Anr [2022] EWCA Civ 1241

Felix Barrow was seriously injured crossing the road outside his house. There were the expected accident reconstruction experts and difficult issues of fact for the Judge to determine long after the events which had occurred in a split second.

Felix lost his claim. He appealed, attacking the Judge on his findings of fact – a common instinct for anyone representing those grievously injured in such horrible accidents and their families.

The CA once again reminded us of the challenges in these appeals.

As Lewison LJ said in Fage UK Limited v Chobani UK Limited [2014] EWCA Civ 5; [2014] FSR 29  an appeal court should not interfere with findings of fact, inferences from findings of fact, or a judge’s evaluation of facts, unless compelled to do so; that is, unless those findings are ‘wrong’. Lewison LJ listed six well known reasons for that approach.

In a nutshell, a Judge will have regard to the whole sea of evidence, whereas an appellate court will only be island hopping.

The CA dismissed the appeal in Barrow, perhaps with a heavy heart. Bean LJ in his short judgment following the main judgment, said that: “ In 1978, after five years of deliberation, the Royal Commission on Civil Liability and Compensation for Personal Injury chaired by Lord Pearson recommended a no-fault compensation scheme for injuries caused in road traffic accidents. But Parliament has not acted on the recommendation. It therefore remains the position that where a child such as Felix is injured by a car whose driver is not shown on the balance of probabilities to have been negligent, the driver’s insurers are not liable to pay any compensation”

One of the issues for the CA was whether the Judge had wrongly preferred the factual witnesses over the accident reconstruction experts.  The CA decided that the Judge had rightly reminded himself of the judgment of Coulson J (as he then was) in Stewart v Glaze [2009] EWHC 704 QB , that it was ‘the primary factual evidence’ which was most important in a case like the present. The expert evidence was a useful way of testing the factual evidence and the inferences which could be drawn from it, but was not a ‘fixed framework’ or formula for ‘rigidly judging’ the defendant’s actions ‘with mathematical precision’

So far, no surprises.

But Barrow considered another decision, albeit a commercial case.

That decision is  Gestmin SGPS S.A. v Credit Suisse (UK) Limited, Credit Suisse Securities (Europe) Limited [2013] EWHC 3560 (Comm). which was decided by Legatt J (as he then was).

The decision is of interest as it provides what I consider to be an almost perfect exposition of the frailties of human memory.

Legatt J said this:

“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. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

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.

It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth”.

The CA in Barrow decided that the Judge was entitled to rely on one of the points made in Gestmin (that an account given nearer to the event in question is more likely to be reliable than a later account or later accounts) and had been right to think that Gestmin did not require him to reject the evidence of the eye witnesses in a road traffic case. The Judge was also entitled to test his ‘plausibility theories’ on the evidence, by reference to its inherent probability, which, Gestmin recognises, are not only unobjectionable, but useful.

Worth remembering.