Kogan v Martin & Ors (Rev 1) [2019] EWCA Civ 1645 concerned a dispute over the authorship and copyright ownership of the screenplay for the film “Florence Foster Jenkins”. The court at first instance dismissed much of evidence of Ms Kogan (who had introduced the story to Mr Martin, a professional writer) on the basis that it was “vague and rambling” and found against her. 

In particular, the court had regard to the judgment of the Commercial Court in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm). There the court devoted several passages to the issue of witnesses’ memory of events. In summary:

·        The process of civil litigation subjects the memories of witnesses to powerful biases.

·        Considerable interference with memory is introduced by the procedure of preparing for trial, including the drafting of the witness statement.

·        The effect of drafting the witness statement and referring to documents: establishes in the mind of the witness the matters recorded in their own statement and other written material, whether they are true or false; and causes the witness’s memory of events to be based increasingly on this material rather than on their original experience of the events.

Allowing Ms Kogan’s appeal, the Court of Appeal made some strong observations on the question of factual witness evidence. It noted that the court at first instance had read Gestmin as an “admonition” against placing any reliance on the recollections of witnesses. It regarded this as a very serious error and that Gestmin should not be taken as laying down a general principle for the assessment of evidence: human memory was fallible, but the courts still had an essential judicial function in making findings of fact based upon all the evidence. It also noted that the observations in Gestmin were expressly addressed to commercial cases, rather than private individuals.

In the event, the Court of Appeal found that Ms Kogan had produced a document that was a genuine attempt to give a fair picture of her contributions and the court at first instance should not have dismissed its contents out of hand.

Comment

The place and status of witness statements have come under much scrutiny from the courts in recent times. Click here for our in-depth assessment of the subject, where we consider the serious questions that have been raised by the courts over the value of witness statements and the growing pressure for reform.

In response to this pressure, a witness evidence working group established last year has been looking at potential options for reform. Changes to the procedure for witness statements may be the next major shift in the rules since the Disclosure Pilot Scheme came into force at the start of the year. It seems unlikely that anything as drastic as doing away entirely with witness statements will happen; the focus will more likely fall on exerting a tighter grip on their scope and the costs involved.

In the meantime, the Court of Appeal’s judgment offers a helpful, balanced view on the subject: it acknowledges the fallibility that inevitably exists in witness recollection but emphasises that this does not give a court carte blanche to disregard such evidence. As always, it will be a question of the weight the court attaches to the evidence in an overall evaluative approach.