THE “BAD SINGING” CASE GETS TWO ENCORES: JUDGE FAILED TO MAKE FINDINGS OF FACT ON KEY ISSUES

I wrote about the first instance decision in Kogan v Martin & Ors [2019] EWCA Civ 1645 here.  The Court of Appeal have ordered a retrial in the case.   There are important observations about the role of the judge in fact finding and the limitations of the guidance given in Gestmin.

“Gestmin is not to be taken as laying down any general principle for the assessment of evidence. It is one of a line of distinguished judicial observations that emphasise the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed“

THE CASE

The first claimant, Mr Martin, wrote the film Florence Foster Jenkins which was premiered in 2016. The defendant, Ms Kogan, claimed she was a co-writer of the film.   During some of the time of writing Mr Martin and Ms Kogan were partners. He is a writer, she a professional opera singer.  The dispute centred on what role Ms Kogan played in the script.  The trial judge found that Ms Kogan had no effective role, she appealed to the Court of Appeal.

THE COURT OF APPEAL JUDGMENT IN RELATION TO FACT FINDING

The Court of Appeal allowed the appeal.  It found that the trial judge had failed to grapple with certain key facts and documents.

1. 1. Mr Malynicz submitted that the judge had wrongly and unfairly ignored Ms Kogan’s evidence, contained in her witness statement and its Annex A. Annex A was a detailed scene-by-scene analysis of Ms Kogan’s contribution to the screenplay, which was largely unchallenged. It was not “vague and rambling” as the judge had unfairly characterised it, and the judge’s statement that he had considered it “shortly before trial” was not a ground for dismissing it. The witness statement with Annex A had been served, in accordance with the judge’s own directions, on 5 May 2017, five months before the trial.

   2. Mr Weisselberg’s response was that Annex A had not been ignored by the judge, who must have read it in order to describe it as he did. The judge simply did not find it helpful, and preferred to test Ms Kogan’s case by reference to the six best contributions, assisted by a colour mark-up of the screenplay produced during the trial, and by reference to the documents passing between the parties.

   3. We think that there is real substance in this ground of appeal. We start by recalling that the judge read Leggatt J’s statements in Gestmin v Credit Suisse and Blue v Ashley as an “admonition” against placing any reliance at all on the recollections of witnesses. We consider that to have been a serious error in the present case for a number of reasons. First, as has very recently been noted by HHJ Gore QC in CBX v North West Anglia NHS Trust [2019] 7 WLUK 57, Gestmin is not to be taken as laying down any general principle for the assessment of evidence. It is one of a line of distinguished judicial observations that emphasise the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed. Earlier statements of this kind are discussed by Lord Bingham in his well-known essay The Judge as Juror: The Judicial Determination of Factual Issues (from The Business of Judging, Oxford 2000). But a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence. Heuristics or mental short cuts are no substitute for this essential judicial function. In particular, where a party’s sworn evidence is disbelieved, the court must say why that is; it cannot simply ignore the evidence.

   4. Secondly, the judge in the present case did not remark that the observations in Gestmin were expressly addressed to commercial cases. For a paradigm example of such a case, in which a careful examination of the abundant documentation ought to have been at the heart of an inquiry into commercial fraud, see Simetra Global Assets Ltd & Anor v Ikon Finance Ltd & Ors [2019] EWCA Civ 1413 and the apposite remarks of Males LJ at paras. 48-49. Here, by contrast, the two parties were private individuals living together for much of the relevant time. That fact made it inherently improbable that details of all their interactions over the creation of the screenplay would be fully recorded in documents. Ms Kogan’s case was that they were bouncing ideas off each other at speed, whereas Mr Martin regarded their interactions as his use of Ms Kogan as a sounding board. Which of these was, objectively, a correct description of their interaction was not likely to be resolved by documents alone, but was a fundamental issue which required to be resolved.

   5. Thirdly, having decided to follow the Gestmin/Blue approach, the judge did not apply it to documents which greatly assisted Ms Kogan’s case. The two documents to which the judge referred at [79] strongly supported an inference that the parties were collaborating on the screenplay at the outset, but the judge declined to draw any inference from them, instead observing that this was early in the project and that the affectionate language used gave little idea of how the parties planned to work together on the subsequent drafts. It was, however, important for the judge to come to a conclusion as to the basis on which the original outline was created. He was tasked with deciding, in the words of Keating J, whether Ms Kogan and Mr Martin had “undertaken jointly to write a [screen]play, agreeing in the general outline and design, and sharing the labour of working it out”. Their approach at the outset was highly relevant.

   6. The judge’s inconsistent approach to the documents is also apparent much later in the process. In a draft email, albeit in the context of seeking to find Ms Kogan a position as voice coach for Meryl Streep in the film, Mr Martin said that Ms Kogan was intimately involved in helping to develop the character of Florence. A colleague to whom Mr Martin showed the draft email described it as honest, generous and fair. Mr Martin did not suggest that he had not been telling the truth in the email. The judge does not refer to this email at all. Recourse to the Gestmin/Blue approach does not justify a selective treatment of this kind.

   7. Yet further, when a friend sent a storyline to Mr Martin for him to comment on, he replied by suggesting that he send it to Ms Kogan as well because “she is good at story”. The judge makes no reference to this exchange, although it supported an inference that Mr Martin relied on and valued Ms Kogan’s abilities with “story”.

   8. Thirdly, the documents on which the judge relied in support of Mr Martin’s case were themselves a shaky foundation for drawing the hard inferences which he drew from them, particularly with regard to where the non-textual creative input was coming from.

   9. Thus, at [81(4)] the judge refers to emails from the time when the story outlines were being written which showed Ms Kogan making only typographical corrections and other comments of a proof-reading kind. One email of 31 March 2012, much relied on by Mr Martin, contained the line:

“Of course, please ignore whatever you please of what I say, this is totally your baby.”

1. 1. Ms Kogan’s witness statement had provided the context for that email, however. She explained that she had been sent a revised version 2 of the FFJ outline on 29 March 2012 (incorporating details which they had discussed that day). She and Mr Martin were “bouncing the drafts back and forth between us”. On 30 March 2012, Mr Martin sent her a revised version 3 of the outline asking what she thought of the revisions, and thanking her for helping him with the work on 29 March. She was concerned, however, that Mr Martin was tiring of what he saw as constant nit-picking with the story and characters, so she decided to tread carefully, diminishing the negative comments while hyping up the positives. She said that:

“For the most part, Nick followed my suggestions about both plot and character decisions and changes, as in our Skype conversation of 29 March 2012, but he also could become irritated on occasion. This is why I wrote that he should ignore whatever he pleases of what I say, as this is “totally your baby“.”

1. In any event, this email might go no further than establishing that Mr Martin was what the judge called “the ultimate arbiter”, which was common ground. It did not necessarily establish that Ms Kogan had not made a collaborative contribution of the relevant kind.

2. The judge also identified at [81(5)] an entry in Ms Kogan’s diary which recorded “N finishes Flo“. This justifiably supports the inference that Mr Martin was the one who was fixing the work in writing and wielding the pen, but does not come close to making it improbable that Ms Kogan was providing significant creative input. At [81(6)] the judge identified an email from Ms Kogan congratulating Mr Martin on finishing the second draft of the screenplay. She said that he had done so “from nothing but your own talent”. But it is impossible to treat this document as literally true, given the admissions by Mr Martin as to what Ms Kogan had contributed, and, if so, it is difficult to understand why the judge did not regard this as mere affectionate encouragement. She was hardly likely to say “Look what you have achieved with all my help”.

3. Fourthly, the judge quoted Ms Kogan’s advice to Mr Martin that he must “protect your position as the writer”, without referring to both parties’ evidence that they were supporting each other in their careers. Ms Kogan’s evidence was that she wanted Mr Martin to receive all the plaudits, but this does not diminish the significance of her contribution.

4. Fifthly, the judge also placed weight, whilst disregarding Ms Kogan’s evidence about them, on the public statements made about Mr Martin being the sole screenwriter, to Ms Kogan’s knowledge. It is, however, hardly surprising that, whilst the parties were in a relationship, and supporting each other in their careers, Ms Kogan did not agitate for a public acknowledgement of her contribution. That was her evidence, but, applying Gestmin, the judge ignored it.

5. To be fair to the judge, it may be that he did not rely on these documents when it came to considering non-textual input, as he does not cross-reference them in the short section of his judgment where he deals with that input. If so, his reasons for rejecting the case based on non-textual input are correspondingly harder to discern.

6. As a separate point we think that the judge should not have criticised Annex A in the way he did, far less give the impression that he had had insufficient time to absorb its contents. This was bound to leave Ms Kogan with the impression that her case had not been fully considered. Having read Annex A, we consider that it was a genuine attempt to give a fair picture of the way in which Ms Kogan said that she had contributed to the creation of the screenplay. It made frank admissions where she considered she had provided no input to a scene, but explained the nature of her contribution where she considered to the contrary. Whilst it may have been longer than required and contained some passages which did not assist, it was not right for the judge to dismiss all of its contents out of hand.

7. One of the items of agreed evidence relied on by the judge was the incident in July 2012 where Mr Martin had reacted badly to the suggestion that he and Ms Kogan should jointly write a script for a different project, and where he had told Ms Kogan that he always worked alone. The judge observed that, despite his being in a romantic relationship with Ms Kogan, there was no evidence that he changed his mind about this, aside from Ms Kogan’s assertions to the contrary. We fail to see why Ms Kogan’s assertions to the contrary should be ignored. Whilst the judge was plainly entitled to rely on this incident for what it was worth, it could not possibly amount to a complete answer to Ms Kogan’s case on collaboration, given what had occurred both before and after July 2012 in relation to the Florence project and particularly when one considers whether there was collaboration in relation to non-textual matters, such as character, plot and dramatic incident.

8. The judge’s approach of relying only on documentary and agreed evidence has led him to fail to make findings on key issues. As we have already pointed out, his summary of the issues concealed a number of sub-issues which he needed to decide. This included the question of whether there was a collaboration between the parties to create the work, and what was the precise nature of that collaboration. The judge has left unresolved the question of whose idea the Florence project was. None of his findings negates Ms Kogan’s case that they would bounce ideas off each other in discussions so that it was impossible to tell who came up with what, or, more generally, that they collaborated at the non-textual level.

9. We are of course deeply conscious of the guidance given at the highest level to all appellate courts that findings of fact by lower courts must not be disturbed except in very limited circumstances. Our problem is a rather different one. Because the judge has expressly declined to have regard to the witness evidence which he heard, we are left without the benefit of what we consider to be essential findings of primary fact, which we are in no position to make ourselves.

10. This was not a case where the conflicts in the written and oral evidence of the parties could be described as honest differences of recollection. If the judge’s findings are correct, Ms Kogan’s written and oral accounts of the process of creating the screenplay in her witness statement, Annex A and her oral evidence were simply untrue. The upshot is that a reader of the judgment is left without any clear idea of the nature of the interaction between Mr Martin and Ms Kogan in the creation of the screenplay. We will have to return to the consequences of this conclusion when we have considered the other grounds of appeal.

THE RESULT

The Court of Appeal ordered that there be a retrial on terms.