In the recent judgment in Phones 4U Limited (In Administration) v EE Limited & Ors [2023] EWHC 2826 (Ch), the judge made some preliminary comments about the judicial assessment of the evidence of factual witnesses. The witnesses in question were giving evidence on events which took place 8-10 years before the trial and where, for some conversations or discussions, there was no direct record, and the surrounding contemporary documents were sparse or sketchy.
The judge referred to a number of previous cases which gave guidance on this issue and in particular the need to exercise caution before placing any weight on the "demeanour" of the witness. In this regard he referenced an earlier case Gestmin SGPS S.A. v Credit Suisse (UK) Limited in which one of the judges commented on the unreliability of human memory when it comes to the recollection of events several years ago remarking that : "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".
The judge in the Phones 4U Limited case said that this caution was all the more relevant where the witnesses had undergone witness "training" specifically mentioning two respected providers. He specifically commented that one witness, described by others as "very talkative and effusive", did not give that impression when in the witness box ,commenting that the said witness had received "two sessions of witness training, amounting to about 4-4.5 hours in total ". The judge commented that another witness was "impressive" and had not received witness training suggesting that the witness familiarisation process had cast doubt in his mind on the credibility of the witness who received it.
What is the difference between witness training and witness familiarisation?
The Court of Appeal in R v Momodou [2005] EWCA Crim 177 recognised the dangers of training or coaching which could change recollections and memories but accepted that this did not preclude pre-trial arrangements to help prepare a witness for the experience of giving oral evidence in court proceedings. Both the Law Society and Bar Council provide guidance on the process of witness familiarisation and include safeguards to ensure the process does not risk contaminating the witness' evidence.
So, what is the issue?
Unfortunately, the judge used the term "training" rather than "familiarisation". Clearly any kind of training is prohibited. Nevertheless, the judge's comments suggest that even the approved form of familiarisation may be viewed negatively by the court when assessing the credibility of a witness' evidence. Whether this is a one-off case or indicative of a wider sentiment amongst judges, it is difficult to say. Further the more recent new witness preparation rules in PD 57AC which are aimed at stopping the process of preparing a statement from altering and influencing the evidence itself suggest that a court will be mindful of any practice which could impact the purity of the evidence given. It is also unclear from the judgment how the judge knew which witnesses had received assistance. It may be that in the future, thought should be given to witnesses explaining in their witness statements the process they have undergone to ensure there is no misunderstanding about the nature of the assistance provided to them.
Find out more
To discuss the issues raised in this article in more detail, please reach out to a member of our Disputes and Investigations team.
