ABSENT WITNESSES CONSIDERED: REASONS FOR ABSENCE NOT ACCEPTED COMPARED TO CIVIL EVIDENCE ACT NOTICE

In Coreix Ltd -v- Coretx Holdings [2017] EWHC 1695 (IPEC)  the trial judge was faced with the approach that should be adopted in relation to witnesses that were not at trial.

THE CASE

The action was a for breach of trademark and passing off (the two companies having similar names which was causing confusion). The defendants denied the breaches and counterclaimed on the basis of acquiescence and estoppel.

MISSING WITNESSES FOR THE DEFENDANT

Mr Recorder Douglas Campbell QC considered the witnesses called by the defendant. There was unnecessary duplication and a surprising omission.
  1. I heard oral evidence on behalf of the Defendants from Mr Mathew Hawkins, Mr Johnathan Lee, Mr Gary Barter, and Mr Julian Phipps. All are or were employees of one or more of the Defendants.
  2. Mr Hawkins founded D3 in 2000. He was at various points a director of each of D1 to D5 but resigned from all positions within the Defendants’ group on 8 September 2016. He was not as careful as he might have been either. For instance he went out of his way to give evidence about an email from a Mr Paul Harvey in which he said the Claimant considered whether the Claimant should rebrand. Mr Hawkins then relied on this email to say that the Claimant’s decision to sue the Defendants instead of rebranding itself was unconscionable. However as his own exhibit showed this email was actually written by a Mr Paul Hughes of NTL World, and not by anyone within the Claimant at all. On matters within his knowledge he was a good witness.
  3. Mr Barter had joined D3 in 2012 and is now Head of Product Management at all of the Defendants except D5. His evidence also covered the creation of the coreTX network in 2013 and its gradual launch through 2014 and 2015. He said that although coreTX was used alongside the C4L brand over this time, C4L remained D3’s primary brand. He was not involved in what he called the decision to rebrand the Defendants to CORETX in April 2016. He was a good witness although his evidence was largely duplicative of that given by Mr Hawkins.
  4. Mr Lee was the Commercial Director of all Defendants except D5. He joined Selection Services in January 2014, initially on a temporary basis. He was a fair witness but his evidence was largely duplicative of that provided by other witnesses for the Defendants and it was barely mentioned in closing submissions.
  5. Mr Phipps was, and/or had been, a director of every Defendant at one time or another and is currently Chief Financial Officer of D1-D4, D6-D9. Much of his evidence referred to things done or said by Mr Andy Ross, whom I have already mentioned. Mr Ross was and is Chief Executive Officer of each of D1-D2, D4, D6-D9 as well as D3 and Mr Phipps referred to him as “the Defendants’ CEO”.
  6. For instance in his first statement Mr Phipps gave evidence about why Mr Ross recommended Coretx as the name for the Defendants’ group. In his second statement Mr Phipps gave evidence about what Mr Ross had said to him in March 2017 about the conversation between Mr Dean and Mr Ross at the Cloud Expo Show on 12 April 2016. Mr Phipps was invited to give evidence in chief about why he, rather than Mr Ross, was giving Mr Ross’s evidence. Mr Phipps said that Mr Ross was willing and able to give evidence at trial, but the Defendants were only allowed 4 witnesses and the relevant Board members decided to have witnesses who could speak for each Defendant.
  7. I do not accept this is the true reason for Mr Ross’s non-attendance. First, I do not see why each Defendant needed to have its own witness since the only Defendant of any specific importance was D3 and one witness would have sufficed for all of the other Defendants. Secondly Mr Phipps himself gave evidence covering all of the other Defendants anyway (as Mr Ross could have done). Thirdly, Mr Ross’s evidence would have been more relevant to the issues at trial than that of Mr Lee, for instance. In my judgment the real reason why Mr Ross did not attend trial is because the Defendants did not want him to, but I do not know why the Defendants did not want him to do so.

MISSING WITNESS FOR THE CLAIMANT

The judge later considered the relevance of a statement from the claimant where a witness did not attend.
  1. The statement signed by Mr Stone is entitled “Draft Statement of Clive Stone” and was signed by him on 24th November 2016. It contained a statement that “The facts stated in this witness statement are true to the best of my knowledge and belief“. In it Mr Stone says that he is the managing director of Waveclear Limited, a telecoms consultancy, and gave evidence about his meeting with Lee-Johnson at the Cloud & Infrastructure Summit 2016. His evidence essentially agreed with Mr Lee-Johnson’s evidence as set out above, but with a little more detail. For instance Mr Stone adds that he knew that C4L had rebranded to Coretx, and he approached the stand because he thought it was C4L’s stand. However Mr Stone confirmed that he thought Coreix and Coretx were part of the same group of companies and that Coreix related to the company’s transit network whereas “Cortex” [his mis-spelling] related to the company’s metro network.
  2. Mr Stone did not voluntarily attend for cross-examination nor did the Claimant issue a witness summons requiring that he do so. The Claimant explained that it did not do so because it did not consider his evidence important enough for a summons, but the Claimant also recognised the tension between this position and a submission that Mr Stone’s evidence was still important enough to be relied upon.
  3. In closing, the Claimant made it clear that it only relied on the evidence as corroborating that of Mr Lee-Johnson. In estimating the weight to be given to Mr Stone’s statement section 4(2) of the Civil Evidence Act 1995 provides a useful checklist of factors. In this case it seems to me that it would have been reasonable and practicable for the Claimant to have produced Mr Stone; but his statement was made only 2 months after the events in question; there is no multiple hearsay in it; no motive was given as to why Mr Stone would lie, and indeed he signed a statement of truth; and the statement was produced for purposes of this case. Another important part of the relevant circumstances (as per section 4(1) of the1 995 Act) is that I have heard and accepted Mr Lee-Johnson’s account of the same meeting, and Mr Stone’s account agrees with it. Taking all these factors into account it seems to me that I can properly rely on Mr Stone’s evidence for the limited purpose of corroboration, but that it does not take me much further than Mr Lee-Johnson’s evidence alone.

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