'I’ll note you in my book of memory': The importance of contemporary records
Parties that take contemporary notes rather than relying on memory are more likely to succeed when it comes to disputes, writes Haynes Boone counsel Jonathan Morton
Nobody wants to run a project with their eye constantly on potential disputes, but should the worst happen, too often we find that ‘innocent’ parties face an uphill battle proving events and agreements not documented at the relevant time. Things are said on the ground and decisions are made during management of the project that could turn out to have significant impact on the legal rights of the parties, but no evidence exists save that of the memory of the individuals involved. And memory is a notoriously fickle beast.
In growing awareness of the unreliable nature of memory, changes in the English Court rules on witness evidence over the last few years have placed even greater emphasis on the importance of contemporary records. Even a reference to a conversation in an email, or a note written on a phone, can be sufficient to convince a judge of the truth of a party’s recollection. The recent case of Connoisseur Developments Ltd & Ors v Koumis ( EWHC 855) set out a useful overview of the court’s current thinking on memory and witness evidence, and highlighted both “the inevitable fallibility of memories over time” and “the difficulty of assessing the ‘demeanour’ of a witness as a guide to truth and accuracy”.
The courts have been alive to recent developments in the scientific understanding of memories, and recognise that they are “fluid and malleable, being constantly rewritten whenever they are retrieved” (Gestmin SGPS SA v Credit Suisse (UK) Ltd  EWHC 3650 (Comm). It is notable that this phrase “fluid and malleable” is also used in the new Business and Property Practice Directions governing witness evidence at paragraph 1.3 of the Appendix to PD57AC). This process is made even worse by the nature of litigation, where witness statements are drafted over time with the involvement of lawyers, and documents are read often years after the event with a biased eye. As such, “the best approach for a judge to adopt in the trial of a commercial case is… to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts (Gestmin v Credit Suisse).”
In practical terms, having systems in place to ensure that proper and complete documentation occurs at the time is therefore essential. While it may mean a few extra minutes spent ensuring things are noted down or recorded in an email sent after a meeting or telephone call, doing so can potentially save months, and substantial sums, in avoiding a formal dispute.
Taking a proactive approach to management of a project with an eye to maintaining complete and comprehensive documentation can pay dividends in the event things go wrong. Simple steps can include: ensuring all emails relating to a project are headed with the project name, and having project-specific email and document filing systems; getting into the habit of following up on meetings or telephone calls with an email recording what was discussed; any changes to the project, no matter how small, being properly recorded and tracked; and ensuring a document retention procedure is in place which keeps project data after completion.
Be careful too of WhatsApp or other electronic messaging. We are increasingly seeing key communications being sent in the heat of the moment via phone, with their drafting not being properly thought out and their wording sufficiently ambiguous to cause difficulties in a dispute. Relationships on the ground can become more informal during longer projects, meaning things are not done by-the-book or not properly spelt out due to assumed mutual understanding, which can swiftly unravel when a disagreement turns things frosty.
Remember too, in this respect, that internal documentation relevant to an issue in dispute will be disclosable. As such, things should always be written with a sense that they may one day be read out loud in front of a judge. Keep things simple and polite. Record the key items of relevance, but don’t put down anything in writing that you would not be comfortable being scrutinised later on. Be careful in this respect with key terminology, particularly contractual language, as we have had examples of linguistic short cuts (such as the word ‘cancel’, when something entirely different was meant) being taken out of context and used by legal teams to create after-the-event arguments.
As such, we would recommend having ‘refresher’ training sessions with key members of project staff, to remind them of these points before commencement of any new project and ensuring that any internal policies are updated to require full and proper record keeping.
Technology is increasingly making record keeping and document organisation simpler and more convenient, and investment in such technology is often well worth it. The electronic book of memory is more reliable, more trustworthy and more comprehensive than the human mind, and should a dispute arise, the party with the best record keeping may well find itself with the best chance of success.
Jonathan Morton is a counsel at Haynes Boone with experience in international disputes, particularly in the shipbuilding, offshore construction and energy industries.