WHEN WITNESS EVIDENCE GOES OFF TRACK: CREDIBILITY SPRINTS AWAY

There are several recent cases where judges deal with the issue of credibility and witnesses.  The first we are looking it is the decision of HHJ Melissa Clarke in British Amateur Gymnastics Association v UK Gymnastics Ltd & Ors [2020] EWHC 1678 (IPEC). Once again we see the futility of “argumentative” witness statements.

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“…much of Mr Adams’ written evidence was inadmissible as it was not evidence of fact, but speculation about the Claimant’s motivation for doing various things including bringing the proceedings, adverse commentary on the strength of the Claimant’s case, and advocacy.”

THE CASE

The claimant was bringing proceedings for trade mark infringement and passing off.

THE JUDGE’S ASSESSMENT OF A WITNESS

19.              In relation to Mr Adams, Ms Jones for the Claimant in closing submissions raised as a factor which should affect my consideration of his credibility Mr Adams’ refusal to accept facts proved in the Claimant’s disciplinary proceedings which caused him to be banned for life from membership of the Claimant, in circumstances where he failed to attend the disciplinary hearing rescheduled five times to enable him to attend, failed to provide any mitigation and failed to appeal the result. He called it a Kangaroo Court and said that he had evidence which could rebut the charges. Of course, the way to do so would have been to participate in the disciplinary proceedings. Mr Reed heard this submission but made no submissions on credibility of any witness, and in particular did not address this submission made by the Claimant.  In my draft judgment, which I circulated to the parties in the usual way, I commented that one of the charges proved against him was an allegation of dishonesty in his financial dealings with club members, and this, together with Mr Adams’ refusal to accept the findings of the disciplinary committee, adversely affected my view of his credibility.
20.              Mr Reed in his skeleton argument in advance of handing down judgment, made submissions that I was wrong to draw adverse inferences about Mr Adams’ credibility from that evidence, saying:
“11. It is well established that evidence of a conviction is inadmissible in civil proceedings (Hollington v F Hewthorn and Company Ltd [1943] 1 KB 587).
12. As Warby J stated, more recently, in Hourani v Thomson [2017] EWHC 432 (QB):
“19. Importantly, the opinions, findings, or conclusions of a court or other investigative body are, as a rule, inadmissible for the purpose of establishing the correctness of those opinions or conclusions: see Hollington v F Hewthorn & Co Ltd [1943] KB 587 and the majority in Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 (see in particular [28]-[33], [79], [103], (Lord Hope), and [130]-[133] (Lord Hutton)). This rule, though long controversial, remains an established part of the common law. Its effects are not limited to criminal convictions (the subject matter of the decision in Hollington v Hewthorn). It extends to other findings of fact or evaluative assessments, including those contained in official reports, such as the Bingham Report on the BCCI scandal (the subject matter of the passages cited from Three Rivers.)…
21. The rule in Hollington v Hewthorn does not exclude reliance on hearsay statements of fact, of whatever degree, which are made or recorded in investigative reports, or in court judgments. So where a report or judgment records that a witness made a particular statement of fact to an investigator or to the court, that record can be relied on as evidence not only that the statement was made but also (if so desired) as evidence that what the witness said was true. Both sides have sought to rely on statements of this kind in relation to the issue of truth. That is legitimate. But the court has to consider what weight to attribute to such material. And that process is governed by the Civil Evidence Act 1995 and the CPR.”
21.              It would have been of assistance to the Court if Mr Reed had made these submissions at the conclusion of the trial after hearing Ms Jones arguments. However, I will deal with them now. I accept Mr Reeds submission that the law is as set out by Warby J in Hourani, and that I should not have drawn adverse inferences from the findings of the Claimant’s disciplinary proceedings, and Mr Adams’ attitude to those findings, in the way that I did in the draft judgment. Accordingly, I have put consideration of the disciplinary proceedings to one side and considered Mr Adams’ credibility afresh and with an open mind.
22.              As I said in the draft judgment, and as I once again find having considered the matter afresh, I did not find Mr Adams to be a good witness. Ms Jones describes his evidence as confused, muddled and evasive, and submits that he gave answers to suit his case while not being sure what his case was. I think that is fair comment. This was most evident in his evidence in cross-examination about whether the First Defendant was an NGB. He surprised Ms Jones, and the Court, by saying “We’ve never called ourselves a national governing body. Basically, we are not a national governing body” when the Defence explicitly states, “The First Defendant is a national governing body”. When Ms Jones challenged him on this and asked whether it was his understanding of the Defendants’ case that the First Defendant was an NGB or not, he provided an equivocal answer: “It depends, we can be, or we can’t be”. It was only after I pressed him to answer the question asked, that he said that the First Defendant was “a national governing body for gymnastics in the UK”. This equivocation is surprising, given that it is a key plank of the Defendants’ case that the First Defendant is a national governing body for gymnastics in the UK.
23.              Mr Adams’ gave written evidence that the First Defendant had membership rules in place when the Defendants’ other witness, Mr Wise, confirmed it did not at the time Mr Adams’ witness statement was made. I accept Mr Wise’s evidence because he was the person who drafted the membership rules and he was clear that he was still in the process of drafting them at that time. He also gave oral evidence that the Defendants wanted to distance themselves from the Claimant as much as possible, which was contradicted by a raft of evidence to the contrary, as I set out in paragraph 143 below. Finally, much of Mr Adams’ written evidence was inadmissible as it was not evidence of fact, but speculation about the Claimant’s motivation for doing various things including bringing the proceedings, adverse commentary on the strength of the Claimant’s case, and advocacy. For those reasons I consider that Mr Adams did not seek to assist the court by giving honest evidence to the best of his ability, but to say what he thought would assist the Defendants even when that was not true. I treat such of Mr Adams’ evidence which is admissible with caution and where it is disputed, I look for corroboration from other reliable evidence or the inherent probabilities before accepting it.