The Science Of Memory: Assessing Evidence In Complex Litigation

In Jaffé v Greybull Capital and others [2024] EWHC 2534 (Comm), Cockerill J highlights the importance of understanding the dynamic nature of memory when assessing the reliability of witnesses' memories and near-contemporaneous documents.

Summary

In this case, Mrs Justice Cockerill was tasked with determining whether an alleged misrepresentation had been made orally nearly eight years ago in a meeting. In grappling with this question, Cockerill J provided a comprehensive analysis of the science of memory. She concluded that the dynamic nature of memory and the influence of time and context on recall should be taken into account when assessing the reliability of both oral and documentary evidence. She found that the near-contemporaneous note produced by one of the witnesses shortly after the meeting was inaccurate when tested against the facts in the full context.