PROVING THINGS 152: CLAIMANT, BRINGING ACTION 50 YEARS AFTER THE EVENT, NOT QUITE THROWN TO THE WOLVES, BUT…

Davies v Wolverhampton Wanderers Football Club (1986) Ltd [2019] EWHC 1252 (Ch) is an example of a case that rested on a very thin strand of , as it turned out extremely flimsy, evidence.

“He is giving evidence about events which happened over 50 years ago. The limitations of human memory, even for events far more recent than that are by now very familiar to the courts, and there are a number of statements in recent cases as to the difficulties in placing reliance on the uncorroborated oral testimony of witnesses.”

 

THE CASE

The claimant brought an action claiming that the logo used by Wolverhampton Wanderers Football Club had a striking resemblance to a drawing that he had submitted to a competition in 1963. It was his case that the logo the club used had a striking similarity to his entry.  The matter was left to rest for a while, however in 2015 the claimant found copies of drawings he had made in 2015 and used these as a basis for bringing the action.

  1. Leaving aside for the moment Mr. Peter Davies himself, and Mr. Ron Davies, I have no hesitation in concluding that each of the other witnesses from whom I heard oral evidence was doing their best to assist the court to the best of their recollection, and although not tested in cross-examination I have no reason to doubt that the same is true of Mrs. Jean Davies, whose statement was adduced as hearsay.
  2. As to Mr. Ron Davies, unlike his brother who was interested in following speedway, he was a Wolves fan and following them from about 1960. According to both him and Mr. Peter Davies, it was he who first noticed that the Club was using a new logo from November 1979 that looked like his brother’s wolf’s head design and who persuaded his brother to write a letter to the Club in 1979 asking where they had got the logo from. On his own account, therefore, for nearly 40 years, Mr. Ron Davies has believed that the Club has been using his brother’s design and he himself says that since the discovery of the manilla folder in 2015, he has been supporting his brother in his researches and in bringing forward his case. It is evident that he believes strongly in the justice of his brother’s cause.
  3. I have no reason to doubt his bona fides in the evidence he gave, but it is inevitable that these matters make it difficult for him, when seeking to remember what happened in the early 1960s, more than 50 years ago, to distinguish clearly between what he believes happened or must have happened and what he can really remember. It also became apparent in the course of his cross-examination that a plain statement in his short witness statement that he saw his brother writing a letter to the club in 1979 was simply wrong. These points inevitably reduce the confidence I can have in his evidence and I have approached his evidence with a degree of caution as a result.
  4. As for Mr. Peter Davies himself, I must say a little more. Having heard his evidence being tested in a lengthy, detailed and skilful cross-examination, I accept that this is not a fabricated claim and that Mr. Davies has convinced himself that Wolves did copy his design. However, there are a number of reasons why I have found it difficult to have confidence in his evidence and consider it essential to test it against such other evidence as there is. I will refer here to three points in particular, although this is not exhaustive.
  5. The first is the sheer length of time since the events relied on. He is giving evidence about events which happened over 50 years ago. The limitations of human memory, even for events far more recent than that are by now very familiar to the courts, and there are a number of statements in recent cases as to the difficulties in placing reliance on the uncorroborated oral testimony of witnesses. See, for example, the well-known and oft-cited comments of Leggatt J in Gestmin SGPS SA v Credit Suisse UK Limited [2013] EWHC 3560, (Comm) at [18]-[23].
  6. That is a point of general application, but the second one is more specific. Mr. Speck was able to show that the details of Mr. Davies’ account have varied in their particulars from time to time, by comparing the account which was first put forward on his behalf in a letter dated 3rd October 2016 from his then solicitors, Mishcon de Reya, with the accounts given in his witness statements (of 17th July 2018 at an interlocutory stage, and 7th February 2019 for trial) in two videos which he made and in his oral evidence.
  7. I need not detail all the discrepancies that Mr. Speck points to. One example will suffice. In the Mishcon de Reya letter it was asserted that the sketches on the back of the poster were drawn using a mathematical theorem known as Pascal’s Hexagrammum Mysticum theorem. Pascal did, indeed, put forward such a theorem, and a detailed account of it (which states that if six arbitrary points are drawn on a conic section and joined to form a hexagon, then the three pairs of opposite sides of the hexagon will meet at three points which all lie on a straight line) was given in the Mishcon de Reya letter and repeated in similar terms in his witness statements.
  8. This appeared to give credibility to his account, and was backed by a reference to his having been required to study Pascal’s theorem as a punishment at school, but by the time he gave evidence before me, his evidence was that he did not understand the mathematics of the theorem at all, that he took the description of the theorem in his witness statement off the internet and that, to him, “Pascal” meant no more than that six points of a design should lie on a circle and that neither the poster designs, nor the stamp album designs, were drawn using Pascal in this sense, or at all.
  9. Indeed, not only did the designs in the stamp album and on the back of the poster not conform to the rubric that six points should lie on a circle, neither did Mr. Davies’ first attempt at reconstructing the design he said he submitted to the art competition. Nor, indeed, does the revised reconstruction now put forward as the copyright work, being the work shown as the final stage in his second video and identified in a still at Bundle XX, tab 5, page 1.
  10. Far less did any of his designs in fact make use of Pascal’s Hexagrammum Mysticum theorem. Indeed, none of the designs incorporated a conic section in the form of an ellipse, parabola or hyperbola, save in the rather strained sense that they incorporated circles which are technically a special type of ellipse. Although they do contain hexagons, all six points of which lie on the circumference of a circle, these are all regular hexagons to which Pascal’s theorem does not in fact apply, as the opposing pairs of sides are parallel and never meet. I do not believe that Pascal’s theorem ever had anything to do with Mr. Davies’ designs at all, despite it forming a noticeable part of the account given in the Mishcon de Reya letter.
  11. The third point I refer to here is that Mr. Davies at some stage in 2016 had a telephone conversation with Mr. Anthony Marshall, which he recorded. He provided first a transcript and then, at their request, a number of MP3 files of the recordings to the defendant’s solicitors. No less than five recordings were sent in this way, and although the fourth and fifth are copies of the first and second, the first three all differ from each other and also from a sixth recording, which is on Mr. Davies’ laptop and was played in court. It is apparent that none of them are complete. I do not intend to go into the detail of the differences between the various versions, which were explored at length in cross-examination. For present purposes, what is significant is that they formed the basis of a suggestion that Mr. Davies has deliberately sought to edit the recording to his advantage. I agree that these matters give rise to real suspicion, and that no plausible explanation has been provided for the discrepancies. I am left with a very strong suspicion that Mr. Davies knows more about this than he professes to.
  12. I accept the point made by Dr. Sampson, who appears for Mr. Davies, that if he had really sought deliberately to distort the evidence, he went about it in a very cack-handed and stupid way, but I have still not understood what alternative explanation there might be, and neither Mr. Davies in his evidence, nor Dr. Sampson in closing submissions, was able to suggest one. I need not, and do not, make any formal finding that Mr. Davies deliberately tampered with the evidence so as to mislead the court, but in the absence of rival explanations and in the light of the other matters I have referred to, I have approached Mr. Davies’ evidence with a considerable degree of caution.
DID THE CLAIMANT ENTER THE COMPETITION IN QUESTION?
  1. I can now revert to the narrative. The question I need to consider is whether I am satisfied that Mr. Davies entered his wolf’s head design in the art competition identified by him. I am prepared, in Mr. Davies’ favour, to assume — although I have considerable doubts about it — that he did enter his wolf’s head design into an art competition in the early 1960s. Nevertheless, I find that it has not been established, and cannot now be established, that it was the particular competition in 1963 run by the Picture Gallery.
  2. I say that for the following reasons. The first account Mr. Davies gave was in October 2015, shortly after, on his account, discovering the manilla folder. He came across an online post by a Mr. Alex Broadhurst, a designer who described himself as a “third generation Wolves fan”, who developed an unhealthy obsession in the 1990s with repeatedly scribbling the Wolves logo, which was “really, really easy to draw”. He commented that, “I have never discovered who first drew this perfectly distilled badge”. Mr. Davies, having seen that post, sent Mr. Broadhurst a series of tweets on 30th October 2015, including one which read “In 1960 there was a competition in the Express and Star to design such a thing and that logo was my entry.”
  3. When one puts that together with Mr. Davies’ evidence that he would draw a lot and that he used to enter many art competitions, maybe a dozen or so per year, and Mr. Ron Davies’ recollection of coming home to find his siblings sitting round the table and his brother Peter showing him a wolf’s head design in yellow and black, it is certainly possible that Mr. Peter Davies did enter such a design in one or other of the art competitions he referred to. The evidence from the stamp album and the poster support Mr. Davies’ evidence that he was keen on geometric designs and Mr. Ron Davies’ evidence that his brother seemed to spend a lot of time working on patterns with a straight edge and compass set.
  4. Mr. Peter Davies was keen on speedway, and I find it quite credible that he thought his wolf’s head design could be used as a speedway bib for the Wolverhampton team, who were also known as Wolves. I will assume, therefore, that he did design a wolf’s head similar to those in the stamp album and on the back of the poster and enter it into an art competition and, further, that it was painted in yellow and black, the colours of the Wolverhampton Speedway team.
  5. But any such artwork has not survived and I find that, even on that assumption, it is impossible now to reconstruct its detailed appearance with anything like precision. Mr. Davies has attempted to do so on more than one occasion. Indeed, he told me he had done so four, five or six times. But I do not have any confidence that his attempts at reconstruction are reliable. Although he has made two videos explaining in detail how he has made his reconstructions using a compass and straight edge to produce hexagons and circles and criss-crossing lines, I am entirely unpersuaded that he can now remember the steps he took as a boy to create whatever he may have submitted. That is illustrated by the fact I have already referred to, that his first attempt at reconstruction did not have all six points of the design lying on a circle, although this appeared from his evidence to have been a point of some importance to the design…
  1. As I have said, without accusing Mr. Davies in any way of making things up, I find that it is impossible now to know quite what any design that was submitted by him looked like. Any such design, no doubt, would have had a general resemblance to those found in the stamp album and on the back of the poster, but beyond that, one cannot now go.
  2. Nor do I think that it can now be proved quite which competition, if any, Mr. Davies entered his wolf’s head design into over 50 years ago. I have already referred to his evidence that he entered many competitions. Mr. Ron Davies confirmed that he did and said, in this context, that their mother was forever and ever cutting bits out of newspapers. Mr. Peter Davies has put in a lot of time to try and find one which it might have been, and it was that that led him to the newspaper announcement I have referred to, but I have no corroborative evidence that he did enter that particular competition.

 

THE EVIDENCE FROM THE DESIGNER OF THE LOGO

The claimant was faced with the evidence from the person who designed the club logo.
  1. I come now to Mr. Jackson’s design of the 1979 logo. He was friends with Mr. Bond who, at the time, owned a PR agency, and had been providing PR services to the Club for most of the 1970s. Probably in late 1978, Mr. Bond recommended Mr. Jackson and his company, Jackson Bird and Partners Limited, to Mr. Harry Marshall, who as already mentioned, was the Club Chairman, the Board of Directors having decided that they wanted to update the rather old-fashioned image of the Club. Mr. Bond’s evidence, which I accept, was that Mr. Marshall wanted a simple, modern design that would, among other things, be easy for children to copy.
  2. Mr. Jackson duly met Mr. Marshall and was instructed to design a new logo. His recollection was that Mr. Marshall wanted a simple, modern-looking design, which would stand out from the logos of other football clubs. He also recalled that it was desired to create something that would be easy for the fans, including children, to reproduce. Mr. Jackson, who is now in his eighties, came forward to give evidence voluntarily when his attention was drawn to press reports about this litigation. Despite his age and some physical frailty, he gave his evidence in a straightforward and confident, indeed forceful manner. It was entirely unshaken in cross-examination and I am firmly disposed to accept it as completely credible.
  3. His evidence was that he had designed the 1979 logo himself, that he was not provided with any specific design ideas or given any sketches or other materials by anyone else, that he had not copied and would not ever copy anyone else’s work, and that he had never seen any of Mr. Davies’ designs. He told me that he did not use a compass to make his design. He drew it free-hand, probably in felt tip, and then squared off the edges. By chance, some of his original artwork has survived. This includes an example of design part-way through the development process. It is a copy made using a camera of his design, printed on what is known as PMT or Photo Mechanical Transfer paper, and it shows clear signs of having been cut in half and re-arranged so as to make the wolf’s head narrower. That supports Mr. Jackson’s account of how he played around with the design until he was happy with it. Once Mr. Jackson had finished the design process and reached a version he was happy with, he presented it to Mr. Marshall, probably in early 1979. Mr. Marshall liked it and the Club, in due course, decided to adopt it.

NO EVIDENCE THE DESIGN HAD BEEN COPIED

The judge rejected the submissions that the design had been copied.  The claimant suggested that his drawing had been sent to the designer and retained for a number of years before being used.

  1. I will take this third possibility first. I will say straightaway that I am satisfied that this did not happen. To establish it, Mr. Davies would have to persuade me (1) that it was the competition judged by Mr. Brett in 1963 that he entered, (2) that Mr. Brett knew Mr. Marshall and passed him the design, (3) that Mr. Marshall kept it for many years, and (4) that Mr. Marshall then passed it to Mr. Jackson, who copied it. I am satisfied that each of these steps is difficult to prove and cumulatively, they are insuperable obstacles to my accepting this route of transmission. As to (1), I have already said that I do not find it has been proved or could have been proved that it was that particular competition Mr. Davies entered, although it is at least a possibility.
  2. As to (2) there is no real evidence before the court that Mr. Harry Marshall knew Mr. Brett at all. Mr. Davies relies on the telephone conversation with Mr. Marshall’s son, Anthony. It is true that, at one point on the transcript, after Mr. Davies has suggested that Mr. Alun Evans and “Bernard” were friends of Mr. Harry Marshall, Mr. Anthony Marshall said that they were names that were certainly mentioned, but in oral evidence before me, Mr. Anthony Marshall was adamant that although he had heard the name Alun Evans, who played, as I have said, for the Club in the late 1960s, he had never, in fact, heard the name of Bernard Brett at all, and he did not recall his father, who he said was completely uninterested in the arts, mentioning him. I accept this evidence and I accept that Mr. Anthony Marshall’s apparent acceptance to the contrary in the telephone call is to be explained by his desire to be friendly and helpful to a person he understood to be a fan. He had no idea at the time that the call was being recorded or the use Mr. Davies would seek to make of it.
  3. Step (2) also requires Mr. Brett to have been sufficiently interested in Mr. Davies’ design to have kept it and handed it to Mr. Marshall. Mr. Jackson told me that Mr. Brett was a figurative illustrator, who would have had no interest in a stylised design such as Mr. Davies’ would have been. I accept his evidence and find it improbable in the extreme that Mr. Brett would have kept Mr. Davies’ design or had any reason to pass it to Mr. Harry Marshall.
  4. Step (3) requires Mr. Harry Marshall to have kept Mr. Davies’ design for some 16 years without doing anything with it and to have still retained it at the time that Mr. Jackson was instructed.
  5. Step (4) requires me to reject Mr. Jackson’s clear evidence that he was given no ideas or materials, and that he came up with his wolf’s head design entirely by himself. I have not the slightest hesitation in saying that I am wholly unpersuaded that his evidence should be rejected. There is, in my judgment, no real possibility that contrary to the entirety of his evidence, Mr. Jackson really based his design on something shown or passed to him by Mr. Marshall and I find that not only is this suggested route of transmission not proved, but I am completely satisfied that it did not take place.
  6. As to the first route suggested, it is the case (and much relied on by Mr. Davies) that Mr. Brett and Mr. Arthur Evans were known to Mr. Jackson. Quite how much of a coincidence that might be depends on how small the art world in Wolverhampton was in the 1960s, something of which I have no real evidence. Mr. Jackson himself was a lecturer at Wolverhampton College of Art between 1958 and 1962 and, as such, knew both Mr. Brett, who was the Head of his Department, and Mr. Arthur Evans, who was in the same Department.
  7. Although Mr. Jackson had left by 1963, he went to work for the Midlands office of a design consultancy called Midland Creative Publicity. Mr. Brett and Mr. Evans remained at the Wolverhampton College of Art, but did some project work with Midland Creative Publicity. Mr. Jackson left Midland Creative Publicity in 1964 and set up his own business with Mr. Bird in 1965. Mr. Brett and Mr. Arthur Evans themselves left Wolverhampton College of Art in around 1965. Thereafter, Mr. Jackson had nothing to do with them and was not in touch with them.
  8. That at least establishes that there was the possibility of contact between Mr. Brett or Mr. Evans and Mr. Jackson, but to accept this case requires not only accepting that the competition that Mr. Davies entered was that judged by Mr. Brett and Mr. Evans, but also accepting that Mr. Brett or Mr. Evans gave his design to Mr. Jackson in 1963, but that Mr. Jackson kept it until 1979, and that he then copied it.
  9. I find that these are wholly implausible scenarios. Leaving aside the difficulty that I am not satisfied that Mr. Davies did send his wolf’s head design to that particular competition, it seems to me wholly implausible to suppose that Mr. Brett and Mr. Evans would have shown or given the work to Mr. Jackson in 1963, especially given Mr. Jackson’s description of Mr. Brett as a figurative illustrator who would have been very unimpressed with such a work, and of Mr. Evans, who had been trained by Mr. Brett, as having had similar views. It is equally implausible to suppose that if they had given it to him in 1963, he would have kept it and later deliberately copied it; something which, in my judgment, would require me to reject his evidence as deliberately untruthful.
  10. Dr. Sampson suggested in closing that I could accept this part of his case without having found Mr. Jackson to have given untruthful evidence, on the basis that his evidence could be explained as faulty recollection, but I do not accept this. The clarity and forcefulness of his evidence left no room for that and I cannot find that he kept for 16 years, and then copied, Mr. Davies’ design without finding that he deliberately lied to me. That is a finding that is entirely contrary to my assessment of him as a witness and not one I am remotely disposed to make.
  11. As to the third possibility, that of subconscious copying, this, too, requires accepting that Mr. Brett and Mr. Evans showed or passed Mr. Davies’ design to Mr. Jackson in 1963-1965, and that he retained sufficient memory of it, such as to enable him to draw on it subconsciously some 14-16 years later. That, too, I find highly implausible and, indeed, Dr. Sampson’s initial instinct was to suggest that this was a case of conscious copying or nothing. He later resiled from that and advanced a case of subconscious copying, but in my judgment, his initial instinct was right.
  12. In the case of subconscious copying after more than a decade, Mr. Jackson could never have reproduced Mr. Davies’ design with anything like precision and, at best, all that he could have copied is the general idea of a geometric wolf’s head seen face-on. No reliance, for these purposes, can therefore be placed on any detailed similarity to suggest the copying. However, once the similarity of Mr. Davies’ design is reduced, as it has to be in the case of subconscious copying, to such a general resemblance, there is no reason in my judgment to infer that the resemblance is the product of subconscious copying, rather than, as Mr. Jackson said, his own ideas uninfluenced by anything else.
  13. In summary, I find all three suggested routes of transmission highly unlikely. The only consideration to be put on the other side is the similarity between Mr. Jackson’s 1979 design and the designs made by Mr. Davies. I have already found that it is not now possible to reconstruct with any precision any competition design entered by Mr. Davies. That means that no precise comparison can be made between Mr. Jackson’s 1979 logo and the actual competition design which has been lost.
  14. Mr. Sampson attempted to support the case of copying by an analysis of the precise angles of certain lines of the design, but in the absence of any reliable reconstruction of what Mr. Davies submitted, I do not think any weight can be placed on this at all. In any event, the work relied on by Mr. Davies as the copyright work is noticeably not the same as Mr. Jackson’s 1979 logo, although it does bear a resemblance to the 1979 shirt, and the angles and proportions are quite different.
  15. However in reality I think that all that can now be done is to compare Mr. Jackson’s design with the sort of designs Mr. Davies was producing, as shown in the stamp album and poster drawings. At a high level of generality, these do indeed show noticeable similarity, as I have said, although they also show differences. The question is whether the similarities are so marked and so striking as to lead to a conclusion that despite the implausibility that I have referred to, the suggestion that Mr. Brett or Mr. Evans shared or gave Mr. Davies’ design to Mr. Jackson or Mr. Marshall, should be accepted as the only possible explanation or at any rate the more probable one. I have no hesitation in saying that I am not persuaded that they are. As between the possibility that Mr. Jackson copied Mr. Davies’ design and the possibility that he, as he so clearly said, came up with his design himself, uninfluenced by Mr. Davies’ design, and that the similarities are no more than a coincidence, I have no hesitation in preferring the latter.
  16. Indeed, once Mr. Jackson had made the decision to adopt a simplified, stylised design of a wolf’s head seen face-on, it may be that it was inevitable that the prominent features would be the ears, the muzzle or jaw and the eyes, and the fact that Mr. Jackson’s design and Mr. Davies’ designs are not dissimilar is not perhaps that surprising, even though they are, as I find, entirely independent of each other. I conclude that Mr. Jackson did not copy Mr. Davies’ design, either consciously or subconsciously.
  17. It follows that Mr. Russell did not copy Mr. Davies’ design in his 2002 reworking either and, as Dr. Sampson accepts, that means that the claim for infringement of copyright falls to be dismissed. This will be a disappointment to Mr. Davies who, as I said, has no doubt convinced himself that the Wolves logo is derived from his design. It may or may not be some comfort to him to have successfully established that while he was still a young teenager, he did come up with a wolf’s head design that in many respects anticipated by many years the iconic logo designed by Mr. Jackson, which has become so well-known.
  18. For the reasons I have given, however, the claim for infringement for copyright advanced in these proceedings fails, and the action must be dismissed. It is unnecessary to consider the further issues that would have arisen had the copying been established.