Do Contemporaneous Meeting Notes Trump Conflicting Witness Evidence?

Witnesses often have genuinely held but mistaken recollections of meetings or conversations that occurred years previously.  So does this mean that when parties are weighing up the merits of their case they should give more weight to contemporaneous notes than to the witness recollections?  

The recent judicial orthodoxy suggests yes, but the recent case of Jaffe v GreyBull Capital may suggest this is not always the case and that contemporaneous notes may not be decisive.

The Judicial Orthodoxy

The recent judicial orthodoxy in preferring contemporaneous documents, where available, over witness evidence was propounded in Legatt J’s now classical passage in Gestmin, in which he said: “… 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.”

The Science Of Memory

Ten years later Lord Justice Popplewell gave a brilliant speech entitled “Judging Truth from Memory: The Science”.  In that speech, he explained the science behind witnesses having genuine but mistaken recollections of events, meaning that witness recollection should be treated with caution.  The speech is really worth reading in full, but one point he makes is that this judicial orthodoxy may have gone too far.  To understand why contemporaneous notes might not be accurate, he summarised the “science of memory”.

The first stage at which the memory might become unreliable is the “encoding stage”.  It is common for people not to encode an important detail - for example a driver who says genuinely that he “just didn’t see the cyclist”, even though he was looking and the cyclist was patently there.  This can be caused by either “attentional blindness” (where the person is hyper focussed on something else) or “inattentional blindness” (where the person is distracted).  Accordingly, in a commercial setting it is perfectly possible for a person in a meeting to not hear (and then encode) something that was said, and believe genuinely but mistakenly that it was never said at all.      

Even where a memory is encoded, it will be subject to all sorts of biases.  The encoding is not a video or audio recording but instead an interpretation, and this interpretation is influenced by our previous experience, our character, our values, our bias to support our position and even “wishful thinking”, all of which shapes the memory and may also fill in gaps at the encoding stage.   A person who goes to a meeting expecting an agreement on a point may well interpret an ambivalent statement as being that agreement - this is a combination of confirmation bias and wishful thinking working together.   

The second stage at which the memory might become unreliable is the “storage stage” - here the problem stems from forgetting and what our brains do when we forget.  We tend to filter - so we remember things that are important to us and discard other details - and what is important to one party might not be important to the counterparty, at least not until the dispute arises.  The problem in a dispute setting is not so much what we forget but what we reconstruct in trying to remember and that is the third stage at which memories can become unreliable - the “retrieval stage”.

During the retrieval stage we are particularly susceptible to biases - when we retrieve (or where there are gaps, reconstruct) our memory, we may subconsciously do so to be consistent with what we would now have expected to have happened, or what we might now want to have happened.  And that is further compounded by the way in which we are asked to remember - the questions or prompts can be infected by misinformation and suggestibility.  In an academic study, where students were shown a film of a motor accident, their recollection was dramatically affected by the questions.  The students reported much greater speeds and damage when the questions described the cars “smashing into each other” as against “hitting each other”.  A high percentage of students when asked what happened when the cars smashed into each other reported seeing broken glass even where there was none.  There was no issue that the students were “lying”, but their recollection was affected by all sorts of biases, prompts and expectations.  And the same applies in commercial litigation - the witness proof is affected by both the witness's own character, expectations and wants coupled with the leading nature of the prompts given and the questions asked.

It follows from the potential for memory to be unreliable that judges often describe witnesses as being honest and having a genuine belief in their evidence but yet also describing that evidence as being unreliable.  As a result, the judicial orthodoxy is to give primacy to contemporaneous documents and inherent probabilities and limiting the importance of witness evidence to providing colour around the context and parties’ motivations.  

The Reliability Of Contemporaneous Notes

But notwithstanding the potential unreliability of witness evidence, Lord Popplewell believes the current judicial orthodoxy as going too far.  Why should that be?  

Contemporaneous documents may not themselves be accurate.  When a person compiles a “contemporaneous document”, all she is doing is retrieving and reconstructing her encoded memory of the events and committing this to paper.  As a result, the contemporaneous document may well contain the same errors and biases as a witness statement compiled years later - the only difference being that there will be less detail lost in the storage stage of memory.  Just because the note is made contemporaneously, the potential encoding and retrieving errors, caused by a combination of biases, expectations and wants, are not eliminated.  There is perhaps one additional problem with contemporaneous notes - these are often drafted by a junior member of the team, who might not realise the significance of some of the discussion, will want to please their seniors and who might be influenced by knowing what points their seniors wanted to make, even if these points were made less obviously or ambiguously (ie. the “social conformity bias”).

Jaffe v Greybull - Contemporaneous Note Not Decisive

Lord Justice Popperwell’s speech and its relevance to the primacy or otherwise of contemporaneous documents was considered by Cockerill J in Jaffe v Greybull Capital.  

The Claimants were claiming damages for fraudulent misrepresentations made orally eight years earlier.  As is usual in cases of oral representations, there was a dispute whether they were made at all.  Also, as seems increasingly common, the Judge had to determine the issue where she found the evidence of both sets of witnesses to be “equally patently honest and truthful”.  

The Claimants seemingly had an advantage because their evidence was supported by a contemporaneous note of the meeting.  You might think, based on the judicial orthodoxy, the judge would resolve this conflict in evidence in the Claimant’s favour based upon that contemporaneous note.  

However, the Judge concluded that whilst something close to what was in the contemporaneous note had been said, it was not decisive because in respect to the critical representations it was:

 “(entirely innocently) inaccurate … The Note is not the live transcription with which we have been blessed at trial. It is a reinterpretation of his manuscript notes which he took at the time. The format of the note suggests that those manuscript notes were sketchy and not word for word.

[The relevant issue] was not the main focus of interest at the time. There is scope for "Chinese whispers" both in the taking of a note and in its interpretation, particularly when there is discussion immediately afterwards. While the natural tendency is to imagine a note written up later in the same day or the next morning is as good as a transcript … [there are a number of reasons why this is not the case as] …clearly collated in the speech of Popplewell LJ.”

It seems to me the speech of Popplewell LJ will feature more prominently in future court decisions - there is now clear scientific evidence that allows both witness recollection and contemporaneous notes to be challenged.   Whilst contemporaneous documents will frequently still provide the “basis for a compelling argument”, they may not be decisive where there is a full examination of the facts in the full context.

This is a further illustration of the risks of proceeding to trial, even in those cases where a party is confident that its evidence is supported by contemporaneous documents.

Simon Goldring

October 2024