A litigator’s tip for claim success: the need for a digital footprint

Recent court decisions such as Bates v Post Office have emphasised that without emails, notes and records to support a claim, you stand next to no chance of success. In this article, leading litigator Iain Roxborough highlights the requirement of records to support any claims.

Case studies

In the recent Bates v Post Office case, the court found in favour of a group of sub-post masters and mistresses and against the Post Office, that various formal documents were of a confusing and contradictory nature and of no relevant effect, rejecting the Post Office witness statements based on human memory. This decision endorsed the reasoning in a further two previous cases.

In Blue v Ashley, it was alleged that during a conversation over beers at the Horse & Groom public house on 24 January 2013, described by the broker’s representatives as “banter”, the defendant allegedly agreed to pay the claimant £15 million if he was able to raise the company’s share price to £8. There were no documents to support the claim. It was concluded that the statements made would not reasonably have been understood as a serious offer capable of creating a legally binding contract.

In Gestmin SGPS SA, the court dismissed a claim that the defendant bank had misrepresented and/or failed to explain the risks of investing in certain securities, that

• it was a “low risk product” and was equivalent to an “AAA bond”
• it had an expected return of over 13%
• it had been the subject of a substantial investment from the defendant.

The claim depended entirely on the recollection of one witness eight years after the relevant events. There was no record of or reference to any of these representations in any contemporaneous document – nor even in any non-contemporaneous document created before court action had begun.

Courts in the 21st century

As the court said in one of its judgments: “In the twenty-first century the prevalence of emails, text messages and other forms of electronic communication is such that most agreements or discussions which are of legal significance, even if not embodied in writing, leave some form of electronic footprint.”

Without such a footprint, evidence based on recollection of what was said in undocumented conversations which occurred several years ago is problematic because human memory is just unreliable. It has been explained that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable. It was a fallacy to suppose that because a person, even an honest person, had a strong feeling of recollection, or was confident in their recollection, their evidence was a reliable guide to the truth.

The courts have endorsed research that human memory did not operate like a camera, making a fixed record of an experience; it was fluid, malleable and constantly being re-written.

In reality, the contents of our memories for experiences involve:

• active manipulation (during encoding)
• integration with pre-existing information (during consolidation)
• reconstruction (during retrieval) of that information.

Finally the courts have noted a powerful tendency for people to remember past events concerning themselves in a self-enhancing light. So the exams where you passed with an ‘A’ grade are remembered, rather than those where you passed with a ‘C’ or less.

The process of civil litigation itself is seen as subjecting the memories of witnesses to powerful biases. Witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

Considerable interference with memory is also said to be introduced in civil litigation by the procedure of preparing witness statements which are usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does or does not say. The effect of this is to establish, in the mind of the witness, the matters recorded in his or her own statement (whether they be true or false) and to cause the witness’s memory of events to be based increasingly on this material, rather than on the original experience of the events.

As a result, judges have repeated that they will place little, if any, reliance on witnesses’ recollections alone of what was said in meetings and conversations, and will instead base factual findings on inferences drawn from documentary evidence and known or probable facts.

So, where does that leave the claimant or witness? Above all, there is a need to have a supportive electronic footprint for your claims.

Creating a trail of correspondence

Lawyers are good at documenting and creating trails of correspondence supportive of your position and prospective claims. But beware, as the tactic is likely to be noticed and objected to.

So if creating a trail becomes too obvious, what else can you do?

Make your own contemporaneous notes of meetings and discussions. But take care in what is recorded so it is not damaging: a lawyer can also help there. And, remember, once you start with noting up, you may have to continue it to be consistent!

Some may say it is better to take the risk of not having notes than having unhelpful ones or ones that make admissions. While it is difficult to generalise, one perception is that, in the US, even lawyers don’t tend to make so many notes as in England. But before most tribunals, it should normally stand you in good stead to act professionally in noting meetings.

And preparing notes can also help you focus and reassess what has been said and done, allowing and creating opportunities for any errors to be addressed there and then in real time, before it is too late. That is what quick-witted lawyers often do and is usually a good idea.