LAWYERS, LITIGATION AND MEMORY III: THE GESTMIN PRINCIPLES APPLIED

“In his instructive article entitled The Judge as Juror: The Judicial Determination of Factual Issues, published in Current Legal Problems 38, Mr Justice Bingham (as he then was) made this observation:
“The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case:
(1) the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;

(2) the internal consistency of the witness’s evidence;

(3) consistency with what the witness has said or deposed on other occasions;

(4) the credit of the witness in relation to matters not germane to the litigation;

(5) the demeanour of the witness.”

Mr Justice Bingham went on to conclude that the first three of the tests may be regarded in general as giving a useful pointer to where the truth lies, whereas the fourth test is more arguable. As regards the fifth, he was of the view that:
“the current tendency is … on the whole to distrust the demeanour of a witness as a reliable pointer to his honesty.”
Further well known guidance was given by Robert Goff LJ given in The Ocean Frost [1985] 1 Lloyds Rep 1 at 57:
“Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, references to the witness’ motives and to the overall probabilities can be of very great assistance to a Judge in ascertaining the truth.””

Civil Litigation Brief

“This may be an interesting year for the consideration of issues relating to the accuracy of memory.   An interesting case where the relevant principles were considered in detail can be found in the judgment in EF -v- The Catholic Child Welfare Society (Diocese of Middlesbrough) [2016] EWHC 3336 (QB). The judgment reviews the principles in some detail. The case confirms that the “Gestmin” principles are not confined to commercial cases but are of general applicability.

THE CASE

This was one of a number of test cases arising from allegations of abuse in various schools. In this case abuse was alleged to have happened between 1972 and 1973.

THE JUDGE’S REVIEW OF THE RELEVANT PRINCIPLES

Given the length of time that had elapsed, it is perhaps not surprising that the judge considered the relevant principles in some detail.

The assessment of the credibility of a witness

In many cases…

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