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Witness credibility and a useful reminder of the fallibility of memory

Jonathan Riding | Brighton Solicitors

1st August 2017

The well-publicised case of Blue v Ashley may be remembered more for the arguably sometimes unorthodox (alleged) approach of its Chairman Mike Ashley in certain business meetings.  However it contains useful reminders about relying on memory alone rather than documents when bringing a claim.

The fallibility of memory is well known.  A litigator has to take special care when taking details from witnesses to understand that memory does not just fade, but that ‘fake memories’ can be created and honestly held by people without them being conscious of this.

An internet search of “Bugs Bunny at Disneyland” shows that when people have been shown fake images of this non-Disney character at Disneyland, they can then honestly recollect having met that character themselves at the park.  Asked if they shook his hand, people have said ‘yes’.  Despite the fact that such event could not have happened.

In the Blue v Ashley case, the Judge referred back to his earlier case of (Gestmin) in which he discussed the problems with relying on memory alone at length, including:

While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony.  One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.

Mr Blue’s case failed for a variety of reasons; but it is interesting that the Judge commented that “With very limited exceptions, therefore, the only evidence of the alleged conversations consists of Mr Blue’s testimony based on his memory. I do not regard that … as a reliable basis on which to make factual findings.

The problems with memory are just one of the many nuanced issues that can arise when a solicitor takes a statement from a witness.   For example, without due awareness of the matters in Gestmin, lawyers can inadvertently steer a witness rather than stick to the simple position that a witness statement needs to be the evidence of the witness in their own words.

There are many common pitfalls in the preparation of strong witness statements and these are another reason why it is advisable to instruct an experienced firm of solicitors in contentious matters.

If you would like to discuss how Griffith Smith Farrington Webb’s litigation team can assist you, please contact Jonathan Riding on 01273 384 011 or at  Jonathan has many years of experience assisting banks, SMEs and HNWs in commercial disputes of all sizes.


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