26th Jul 2022


Mr Stephen Hackett (instructed by RHF Solicitors) for the Defendant

Richard Farnhill (Sitting as a Deputy High Court Judge for the Chancery Division):

In a noted study published in 1981, “Role of schemata in memory for places”, the psychologists William Brewer and James Treyens reported on a simple but revealing experiment they had conducted. Each of the 87 study subjects was asked to wait briefly in an office before being led into another room. In that second room they were asked to write down a list of everything they had seen in the office. The overwhelming majority recalled seeing typical office furniture – a desk, chairs, shelves and so forth. That was unsurprising, since they had seen such items only seconds earlier. Thirty per. cent recalled seeing books and ten per. cent recalled seeing a filing cabinet. That was more unusual, because the office contained neither books nor a filing cabinet.

The study demonstrates an aspect of the fallibility of memory. We do not store memories as images, like a photo album, to be revisited in detail at a later date. We recreate the image every time we recall it, combining the details of what we do recall with our expectations of what we should recall. The process is automatic, and done without conscious realisation that it is taking place.

That issue is at the heart of this case. In the Brewer and Treyens study, different witnesses had different recollections of the same room that they had seen only seconds before. In this case, two witnesses have critically different recollections of the same telephone conversation held in March 2017 to which they were the only parties.

The witnesses

Mr Paget is a director of the Claimant (IPD) and was its principal witness. He concluded the contract in dispute in this case (the Agreement) on IPD’s behalf on 6 March 2017 by way of a telephone conversation with Mr Beale of the Defendant (WDES).

Mr Paget was a helpful witness. He gave comprehensive answers but ones that were always responsive to the question asked. He accepted where he felt his recollection was unclear, particularly as regards the precise timing of meetings for which there was no documentary record, and acknowledged where matters were outside the scope of his knowledge. He understood his obligations to assist the court and in my view he fully discharged those obligations.

Mr Batchelor was the other director of IPD. He played a somewhat secondary role to Mr Paget on this project, and was not involved in the 6 March telephone call that gave rise to the Agreement. He was, however, a co-principal of the Claimant and was involved throughout, on occasion taking the lead in exchanges. He attended some of the critical meetings.

Mr Batchelor had a discursive manner, and often gave long answers to the question that did not always address the point being put to him. In saying that I mean no criticism of him. I did not consider him evasive or argumentative and he was obviously trying to assist. The fact remains, however, that there was a degree of vagueness to his evidence.

Ms Vanns was one of the lead designers at IPD working on the Nespresso project. She is a highly experienced designer and represented IPD at a meeting at Lausanne that was important to the development of the Nespresso relationship. She was also present at several of the meetings with Mr Beale. She held no executive position at IPD, however, and was not involved in any of the contract negotiations.

As a witness she came across very impressively. Her answers were clear and concise. She was ready to concede where matters were outside her knowledge and at no stage did I feel she ventured into speculation.

Mr Barker, Mr Ellis and Mr Warman all gave short, quite discrete statements covering quite limited points. Their cross examination was similarly brief. Each of them was helpful and co-operative. Mr Ellis’ recollection was unclear on some of the key events but he was open and candid in recognising when that was the case.

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