WITNESSES, SEARCHES, CREDIBILITY AND… BEDS: AN AVERAGE DAY IN THE INTELLECTUAL PROPERTY ENTERPRISE COURT: NAILING JELLY TO THE WALL

The judgment  in  Birlea Furniture Ltd v Platinum Enterprise (UK) Ltd & Anor [2018] EWHC 26 (IPEC) has some interesting lessons for all litigators. Not least the need to be on guard in relation to search terms and search criteria.

“Watching Mr St Quintin’s efforts to cross-examine the Second Defendant was like watching him try to nail jelly to a wall.”

THE CASE

The claimant alleged that the defendants had sold beds on Amazon in breach of the claimant’s trade mark. Her Honour Judge Melissa Clarke was considering issues of liability.  The defendant’s case was any breach was accident and inadvertent and they were not aware of the breach.  The information that was available to the defendant from the selling platform (Amazon) was, therefore, central to the issues in the case.

PROACTIVE COMPUTER SEARCHING

One striking aspect of the case is the steps taken by the claimant’s solicitor to obtain disclosure of details of the first defendant’s Amazon account details.  Simple steps taken in a disclosure meeting led to significant results.

1. “Mr Lester filed one witness statement dated 5 June 2017. He is a solicitor employed by Freeths LLP, the Claimant’s solicitors. He attended an inspection meeting as part of the disclosure process at the Defendant’s solicitors’ offices on 6 December 2016 and his witness statement describes this meeting. In particular he describes how the Second Defendant purported to search the ‘Reports’ section of the First Defendant’s Amazon seller account, to return no results. Mr Lester then asked for, and was given, control of the laptop and he searched the ‘Orders’ section of the First Defendant’s Amazon seller account to find 1696 sales of cream and black beds by the First Defendant via the Listings. Mr Lester’s evidence is that while watching the Second Defendant log into and navigate around the First Defendant’s Amazon seller account, he considered that he appeared adept at using the Amazon platform; that the ‘Orders’ section of the Amazon seller account, which the Second Defendant said he had never searched, was the most obvious and relevant one to search to locate data relating to the history of previous orders of the six main headings on the account; and that he believed that the Second Defendant had carried out previous searches with mistyped ASIN numbers (replacing zeroes with Os) and with limited date ranges in order to hide sales from the Claimant.”

CREDIBILITY OF WITNESSES

1. I am also concerned about the fact that the searches of the First Defendant’s Amazon seller account that the Second Defendant initially carried out and disclosed to the Claimant were flawed in a number of different ways. I accept it is possible for someone to get confused between zeroes and Os when typing out an alphanumerical product code. However, the Second Defendant should have questioned why a search of the D4G Listing ASIN number returned no sales results when he searched cream beds, in light of his admission that he knew the First Defendant had sold some. The fact that he did not, and went on to carry out and disclose two more flawed searches (the search of the D64 Listing with a highly reduced date range, and a search described in Mr Lester’s first witness statement which on close inspection has had a bar-code product filter applied to it so that no results are found by a search of ASIN numbers), and the fact that he gave false evidence that the First Defendant had bought 3 container-loads of beds when it had bought 6, leads me to the conclusion on the balance of probabilities, in circumstances where his credibility has already been impaired by admittedly false statements, that such searches were part of a campaign of obfuscation entered into by the Second Defendant to hide from the Claimant the true extent of the First Defendant’s sales using the Listings. I accept Mr St Quintin’s submissions to that effect.

2. This conclusion is partly based on the Second Defendant’s performance in cross-examination, in which I found him similarly obfuscatory. For example, he was asked why he searched the D64 Listing with such a reduced date range. He said that was because Amazon had told him he could only search back for a maximum of two years. Mr St Quintin showed him that the date range he had chosen was from 14 February 2014 to 24 May 2016, i.e. more than two years and encompassing a period of over a year after the last sale of product by the First Defendant on the Listings. The Second Defendant accepted it was more than two years, but said that “it was done over the phone with the Amazon representative”. He was asked why he had searched from February 2014. He said “because that was when the Amazon listing was created, February 2013, so that’s when I searched”. When Mr St Quintin pointed out once again that he had searched from February 2014, not February 2013, he responded “Well, it could have been a mistake.”

3. Watching Mr St Quintin’s efforts to cross-examine the Second Defendant was like watching him try to nail jelly to a wall. I mean Mr St Quintin no disrespect by that analogy. The nature of the Second Defendant’s slippery gyrations in responding to questions was such that even Mr St Quintin’s skilful attempts to get him to provide (and stick to) straight answers, were doomed to failure. As the evidence of each of the Second Defendant’s witness statements was materially amended and contradicted by the next, so did he attempt to offer new evidence in cross-examination, and then resile from it, eventually admitting the possibility that almost all the evidence he had given was wrong. Even when Mr St Quintin put to him that he was prepared to say anything at all if he thought it might help his defence, the Second Defendant was unable to give a definite answer, saying “I don’t think it is true”. I think it is true. In my judgment the Second Defendant would say anything at all, without regard to truth, if he thought it would assist his defence. I treat his evidence with very great caution and do not accept it unless other credible evidence or the inherent probabilities support it.