CXB v North West Anglia NHS Foundation Trust  EWHC 2053 (QB)
This article originally appeared in Issue 3 (November 2019).
This was a claim for negligence in the management of the Claimant’s birth where unusually the trial focussed on a single key issue of disputed fact. It had been admitted in the Defence that if the Claimant’s mother had chosen, at any stage, delivery by way of caesarean section her choice would have been agreed with, which would have resulted in a delivery that would have avoided the relevant damaging event. It was the Claimant’s case that she did so elect and the Defendant’s that she did not.
At the heart of the dispute was a clinical note, signed by the Senior Registrar which said: “IOL [induction of labour] booked at term. Above discussed with Mr Forbes. Plan ANC [ante-natal clinic] 2/52”. The Defendant said that this note demonstrated that there was clearly a discussion about mode of delivery and the Claimant had chosen induction of labour over caesarean. The Defendant invited the Court to prefer the reliability and veracity of assertions contained in clinical notes and records to factual accounts in written witness statements and oral testimony of witnesses who asserted the contrary. Considerable reliance was placed by the Defendant on the decision of Leggatt J of Gestmin SPGS SA v Credit Suisse (UK) Limited  EWHC 3560.
The Gestmin principles
The case is of interest for the observations of the Judge, HHJ Gore QC, with regard to extent to which the Gestmin decision in fact lays down any principles at all. Readers will recall that Leggatt J in Gestmin at  to  set out a number of matters relevant to the judicial assessment of oral evidence at trial – focussing in particular on just how unreliable human memory can be. He said for example, at :
“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”.
It has become a very influential passage cited in a number of recent clinical negligence decisions (see e.g. Taylor v Chesterfield Royal NHS Foundation Trust  EWHC 1048 and Mills v Oxfordshire NHS Foundation Trust  EWHC 936). This is largely because Stewart J in Kimathi v Foreign and Commonwealth Office  EWHC 2066 (QB) had sanctioned the passage as: “important as a helpful general guide to evaluating oral evidence and the accuracy/reliability of memory.” Stewart J repeated the observations in Olloson v Lee  EWHC 784, and distilled the “principles” relating to the assessment of oral evidence from Gestmin as follows at :
• We believe memories to be more faithful than they are. Two common errors are to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; (2) the more confident another person is in their recollection, the more likely it is to be accurate.
• Memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is even true of “flash bulb” memories (a misleading term), i.e. memories of experiencing or learning of a particularly shocking or traumatic event.
• Events can come to be recalled as memories which did not happen at all or which happened to somebody else.
• The process of civil litigation itself subjects the memories of witnesses to powerful biases.
• Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by a lawyer who is conscious of the significance for the issues in the case of what the witness does or does not say.
• The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts.
• This does not mean that oral testimony serves no useful purpose… But its value lies largely… 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, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth…
HHJ Gore QC’s response to such submissions was trenchant:
“as is …. becoming the fashion, these submissions rely on and repeat intrusions into this difficult area by various judges so as to give the appearance of authoritative statements of principle. So it is that the greater number of cases and the greater number of judges who rely on one of the originators of these arguments, the decision of Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse Limited  EWHC 3560, the more authoritative it appears to become. This approach in my judgment is fraught with danger”.
HHJ Gore QC considered that the approach outlined in Gestmin should be treated with very great caution for a number of reasons of which the first three are the most important. First, he said, the Gestmin approach is not a statement of legal principle at all. Second, if and insofar as Leggatt J’s 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. Third, Gestmin was a commercial case where the relevant question was whether the relevant witness should be regarded as bound by his signed statement of investment objectives at the time the contractual relationship commenced. The documents said to be more reliable had been signed by the person who then sought to persuade the court that it did not represent his thinking at the time.
Ultimately, HHJ Gore QC upheld the Defendant’s argument that the Claimant and her husband’s account could not be relied upon but he did so not by following any guidance in Gestmin but by adopting the approach endorsed in Synclair v East Lancashire Hospital NHS Trust  EWCA Civ 1283, which is to say, viewing the documentary and oral evidence forensically and not simply by subjective criteria such as demeanour of live witnesses, and then giving full reasons for his preference of one account over the other.
The judge’s remarks about Gestmin, are of interest and should serve to discourage uncritical application of the passage at paragraphs 16-22 of Gestmin, even though – to many readers, this author being one, the cautious judicial approach to oral testimony which Leggatt J commends is both cogent and consonant both with human experience and relevant professional expert psychological literature. Notwithstanding, it should be noted that HHJ’s Gore’s cautionary words have since been expressly approved by the Court of Appeal in Kogan v Martin and others  EWCA Civ 1645. Kogan was not a commercial case, but a QB action about the disputed authorship of a screenplay. The Court of Appeal confirmed that Gestmin is not to be taken as laying down any principle for the assessment of evidence. Rather 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. The Court of Appeal emphasised the crucial point that proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based on all of the evidence. As they commented at :
“Heuristics or mental short cuts are not substitute for this essential judicial function. In particular, where a party’s sworn evidence is disbelieved, the court must say why that its, it cannot simply ignore the evidence.”
That last point was of crucial importance in Kogan because that was not a case where the conflicts in the written and oral evidence of the parties could be described as “honest differences of recollection”. If the judge’s findings were correct, the claimant’s written and oral accounts of the process of writing the screenplay were simply untrue.
Perhaps the real lesson from these cases is that there is no judicial short-cut to rejecting oral evidence given by one party and preferring the evidence of another. Judges (not least because they are taught about it by the Judicial College) are keenly alert to the shortcomings of human memory. It is the trial process which should give the judge the opportunity of being able to evaluate and, if necessary, reject honest recollection of witnesses, by reference to the totality of the evidence before the court.