Clash of Recollections: ­Contemporaneous Documents as Evidence

The recent High Court judgment in Jaffe v Greybull Capital LLP [2024] EWHC 2534 (Comm) clarifies the use of contemporaneous documents in evidence and witness recollection. 

The case

In Jaffe v Greybull Capital, the High Court dismissed a claim for damages due to fraudulent misrepresentation, citing the unreliability of witness recollection nearly eight years after the alleged oral representations were made. 

The case concerned allegations that an oral misrepresentation during a 2016 meeting led to Wirecard Bank extending credit to Monarch Airlines, which later became insolvent. The claimants sought £12 million in damages but despite a near-contemporaneous note the Court concluded that the alleged misrepresentations had not been made. 

In the judgement, the conflicting accounts of two “equally patently honest and truthful witnesses” were taken into consideration alongside the “contemporaneous documentation, the parties’ motives and inherent probabilities.” The judgement shows how parties may challenge the accuracy of contemporaneous documents without ­suggesting they were produced with dishonest intent. 

Gestmin approach 

In commercial cases, contemporary documents have ­often been deemed far more reliable than oral evidence. In Jaffe v Greybull Capital, Mrs Justice Cockerill DBE referenced the “Gestmin approach” from Gestmin v Credit Suisse [2013] EWHC 3560 (Comm), which focuses on the fallibility of memory and the importance of contemporaneous documents over oral evidence. In the Gestmin case, the court noted that “[m]emory 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.”

Clash of recollections

Cockerill J noted there was a fairly powerful “classic Gestmin” submission made by the claimants that the near-contemporaneous note of the meeting were an “accurate” reflection of the meeting. 

At the heart of Jaffe v Greybull Capital was the clash of recollections, with the Cockerill J observing that there were “very credible witnesses on both sides” and that she had “no doubt the individual witnesses’ truths – in the sense of what they either do (now) recall or what they honestly think they recall – are simply different”. This presented a number of difficult issues around the ­science of memory. 

Cockerill J noted that while the document in ­question could be taken as the “basis for a compelling argument”, it still had to be tested against the facts in the full context, which included what each party was focusing on but did not communicate to the other side. 

Contemporaneous evidence 

Reliance was placed on earlier cases such as Avonwick Holdings Ltd v Azitio Holdings Ltd [2020] EWHC 1844 (Comm), where contemporaneous documents were considered far more reliable than witness testimonies. This was considered particularly true where factual evidence was given by persons not in their first language or through an interpreter, which could “lead to difficulties in making any assessment of demeanour and which can give rise to issues where a witness looks evasive because of miscommunications”. 

In Jaffe v Greybull Capital, one of the witnesses’ ­record of the meeting in 2016 where the alleged oral misrepresentation occurred was reconstructing what was said in his second language from handwritten meeting notes which were “necessarily incomplete”. 

The meeting was fairly length and Cockerill J said, “[t]he 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.” 
This shows that issues may arise where handwritten notes of meetings have been given in a witness’ second language or after post-meeting discussions.

Memory and reconstruction

The court also considered insights from Lord Justice Popplewell’s 2023 lecture “Judging Truth from Memory”, which expands on matters in the Gestmin case. The lecture dealt with the value of recollection, the science of memory and the problems which result from faulty encoding of memories. 

Cockerill J made several references to the lecture, quoting, amongst others that “contemporaneous documents… may be produced near the time, but they are produced after the memory has been encoded, and if there is an encoding fallibility, which there may be for all these different reasons, it infects the so called contemporaneous record every bit as much as other reasons for the fallibility of recollection which affect it at the storage and retrieval stage.” 

This shows that people often fill in memory gaps based on assumptions and past beliefs, as also noted in the Gestmin case (quoted above). 

Indeed, Cockerill J mentions that there is “scope for ‘Chinese whispers’”, where, for example, a meeting note can be interpreted differently by the notetaker – especially if there has been a discussion immediately after the meeting and before the note is written down.

“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 the evidence on the fall off of memory in the immediate aftermath of an event is clear and clearly collated in the speech of Popplewell LJ”. 

Contemporaneous documents should therefore be ­scrutinised considering the witness’ “worldview”, which includes their biases and assumptions.

Contemporaneous documents may not be entirely ­reliable as the recorder’s state of mind may have ­influenced the content. 

Impact of Jaffe v Greybull Capital in commercial and shipping cases 

In commercial and shipping litigation, the reliance on contemporaneous documents over witness recollection is normal. Due to the lengthy timelines and complex details involved, documentary evidence such as log books, VDR recordings, and near-contemporaneous notes often provide more dependable accounts than witness testimonies. Even when witnesses are honest and truthful, their memories of events that occurred years ago can be unreliable. 

The judgement in Jaffe v Greybull Capital emphasises the need to scrutinise contemporaneous documents and to consider the full facts of the context, the potential biases and “worldviews” of those who created them.