We have all heard the expression "wishful thinking", but the recent decision of Old Park Capital Maestro Fund Ltd [2023] EWHC 1886 (Ch) (27 July 2023) is a reminder of the risks of this happening in litigation.

‘Litigation wishful thinking’ was coined by Mann J in the case of Tamlura NV v CMS Cameron McKenna [2009] EWHC 538 (Ch). In Tamulra the witness maintained that he did not understand the effect of some of the drafts of the documents.  The judge thought this was unlikely and stated: "I  think that he is capable of, and has been guilty of, reconstruction based on wishful thinking. His recollection of detail of this case is, like that of most of the participants, understandably hazy where it exists at all.

Witnesses in civil proceedings clearly need to avoid making untrue statements in their evidence. If untrue statements are made, then an attack by the other side based on unsatisfactory witness evidence (see Painter v Hutchison [2007] EWHC 758 (Ch)) is likely to follow. This is what happened to a witness in the case of Old Park Capital [2023].

Anyone asked to give witness evidence knows that it can be a daunting process, especially if events took place over a long period. However, it is always worth checking that the events certified in witness statements accord with the actual events, which are often able to be separately verified by documentation. 

The witness in the Old Park Capital case received some sympathy from the judge as nearly 40,000 documents were extracted from that individual’s data sources, reduced to 20,000 for the purposes of disclosure. It was acknowledged the evidence in dispute featured in just a few emails. Although no finding of unsatisfactory evidence was made in the Old Park case (despite the attack on the evidence), the cross-examination experience was likely unpleasant for the witness.

Witnesses should be mindful of the statements they make, and should check documentary evidence (such as emails) to see if they support / contradict their evidence. The decision in Jackman v Harold Firth & Son Ltd [2021] EWHC 1461 (QB) (28 May 2021) confirms this is a useful and important exercise as "it gives the court an opportunity to compare a near contemporaneous version of events (subject to no or little reconstruction) with a re-constructed version of events."

The courts recognise a witnesses memory becomes less reliable with the passing of time and is also influenced by unconscious bias. Indeed, the Statement of Best Practice appended to PD57AC acknowledges that the memory can be refreshed by being shown contemporaneous documents that the witness created or saw while the facts evidenced by or referred to in the document were fresh in their mind.

The Dispute Resolution team at Burges Salmon are experts in the disclosure and evidence process in civil dispute resolution.