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Beware imperfect recollection – evidence of normal practice might not be enough

Print publication

26/01/2017

“I would have done what I always do” is an incredibly common statement when it comes to adducing evidence in lender cases, but Walker Morris Banking Litigation expert advises mutuals as to why witnesses should beware reliance on imperfect recollection.

Within the retail lending market, the urgency and pressure of customer deadlines and commercial targets for mortgage approvals, along with the sheer volume of cases dealt with by individual underwriters, mortgage valuation surveyors and intermediaries, as well as the process-driven nature of the work, can, quite understandably, mean that one case very much runs into another. Specific details about any one particular case can therefore become indistinguishable or even lost altogether, and that can cause difficulties when it comes to giving evidence later down the line.  That is especially so if, as often happens, a dispute arises some years after the event.

In such cases it is very common practice for a witness to give evidence as to his or her normal practice (as to, say, underwriting procedures or mortgage valuation techniques), and therefore to ask the court to accept that the witness would have acted in accordance with that normal practice in the case in question.

A recent spate of cases [1], however, has highlighted that that is actually a risky strategy to adopt.  In fact, over recent months there have been several decisions which have emphasised that, regardless of the overall honesty and credibility of a witness; and regardless how reasonable in the circumstances of the case [2] it may have been for an individual witness not to specifically notice or record particular events or details, evidence of normal practice might well be legitimately rejected by the court.  Similarly, a judge may reject a ‘statistical’ or ‘probability’ approach to establishing what actually happened in any given case where a witness’ recollection may not be absolute.  Instead, in all cases, the court will examine available evidence – in particular documentary evidence – first.  Mutuals and other lender should note that witnesses’ imperfect recollection and/or evidence or normal practice will only be considered thereafter and will be weighed in the balance.

WM Comment

While it may seem ironic to recommend incurring further time [implementing and] complying with an additional administrative step in the retail lender’s/valuer’s process, the best way for mutuals and individual employees and professionals to protect themselves is to keep a detailed, written or digital record of every communication and decision undertaken in every single case.

The old saying goes ‘a stitch in time saves time’ and the concept rings true in this context. In an ideal world, if mutuals and their representatives can routinely take the time to consider and record the detail of all their dealings, the benefits can be several-fold: mistakes, delays and customer complaints are less likely to arise in the first place; and if and when they do, reliable recollection and documentary evidence will be readily at hand to support and protect the building society’s position.

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[1] All of which arise in the context of medical negligence claims, but the legal principles of which apply equally in lender cases: [2016] EWHC 121 (QB); [2016 EWHC 251 (QB); [2016] EWHC 269 (QB); [2016] EWHC 330 (QB)
[2] as to which, factors such as workload and time pressure will be relevant

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