PROVING THINGS 198: “NOT RELIABLE EVIDENCE”: THOSE EMAILS MAY NOT BE ALL THEY SEEM

In  Richards v Harvey [2021] EWHC 21 (Ch) HHJ Cooke, doubted the authenticity of emails relied upon by the claimant. It is a reminder of the importance of a notice to prove.

 

“This document is not reliable evidence of the text of any email that Mr Richards may have composed on 5 February 2014”

THE CASE

The claimant brought an action for damages alleging that he had entered into a contract with the defendant.   The existence of that contract was denied and the judge had to consider emails that passed between the parties.

THE JUDGMENT IN RELATION TO THE CLAIMANT’S EMAILS

 

Reliability of Mr Richards’ evidence- altered emails
    1. The defendant has served a notice to prove four documents, all apparently emails sent by Mr Richards, that are contained in the bundle. Three of these (Bundle tabs B2/104 (12 June 2013) B3/192 (13 March 2014) and B5/290 (12 December 2014)) are similar to emails disclosed by Mr Harvey which he accepts he received or sent, but tracked comparisons show numerous differences in the text. The fourth (B3/158, 5 February 2014) has no similar counterpart and Mr Harvey denies receiving that or any email from Mr Richards on 5 February, which of course was the day after the crucial meeting.
    2. As to the first three challenged emails, Mr Richards accepted in evidence that these were documents he had forwarded to his solicitors, and that before doing so he had made alterations to the text of the original messages. He had not told his solicitors that he had made these alterations, and the added or altered text is not set out in such a way (eg by being in a different colour or font) that would make the changes apparent. It is fair to say that all of the alterations would tend to strengthen Mr Richards’ case or add support to his version of events. He had done so, he said, in order to “translate” or “explain” the words in the original emails. He had no good explanation why he had not told his solicitors this at the time he provided the documents to them. Without that information these documents gave a misleading impression, which would have been conveyed to the court if the defence had not spotted the discrepancies. Mr Knott stated in opening that the claimant would not rely on any of those three emails.
    3. Mr Knott did however seek to rely on the email dated 5 March 2014, which would be an important document if genuine. In it Mr Richards says:

“It was good to see you yesterday morning at your house and to finally shake hands on the agreement reached between us. I fully understand why you don’t want the agreement to be in writing… however as you put it a gentleman’s agreement is binding on us both…I will advise [CGF] of our agreement reached…”

Thus it would support Mr Richards’ evidence that he understood, indeed had expressly been told, that a binding agreement had been reached at the meeting.
    1. Mr Richards has not been able to produce the original of this email, either in electronic or paper form. The electronic version had been deleted, he said, and he had only a paper copy that was in such poor condition that he retyped it, at some point in 2019, and gave this retyped version to his solicitors which is what they disclosed. He had, he insisted in cross examination, copied it accurately.
    2. I do not accept this account. Firstly, this email would not sit well in the surrounding correspondence. On 7 February Mr Richards sent the email I referred to above to Mr Harvey (B3/159). For convenience I repeat part of the text here:

“I enjoyed chatting with you the other morning. In many respects we have a great deal in common….

I hope you have had the opportunity of going over my proposal with [CGF] and moreover that they also agree that this is the best route for you and I to take…

I would very much like to put the past behind us…I have taken the opportunity of explaining to Zarina [his lawyer] what I hope we have now agreed on…”

    1. That email, which Mr Richards accepts he sent, is in my view inconsistent with there having been any prior email in the terms of the 5 February document. It makes no reference to any such earlier email, and reads as if it is the first communication after the meeting on 4 February. There is no apparent reason why Mr Richards would have considered on 5 February that he had “an agreement reached…binding on us both” but within two days have apparently downgraded this understanding to a “proposal” that Mr Harvey was to discuss with his lawyers that he “hope[d]” they would agree was the best way forward”.
    2. Second, there is no trace of any contact between Mr Richards and CGF after the meeting that could amount to him “advising” the lawyers of an agreement he had reached with Mr Harvey. He did send them an email on 27 February (B3/160) in which he said “as you know I have been discussing matters with John directly and I know he is in touch with your firm about that”. That message is not consistent with Mr Richards himself having made any earlier contact with CGF about the meeting, and is very far from asserting that an agreement has been reached.
    3. Third, there is no apparent reason why the electronic version of this email should have been lost when others were not, nor why, if it was sent, it was not received by Mr Harvey.
    4. Mr Richards’ evidence about the other three emails challenged shows that he is not above presenting altered documents to assist his case, which is plainly damaging to his credibility. It is his obligation to prove that the 5 February document is genuine, and I am not satisfied that he has done so. It was not, in the end, put to him that it is a complete forgery, so I limit my findings to saying that
i) This document is not reliable evidence of the text of any email that Mr Richards may have composed on 5 February 2014, and
ii) I am satisfied that if Mr Richards did compose any email on that day, whether in this or any other form, Mr Harvey did not receive it.
I attribute no weight to this document on any material issue.”

 

A REMINDER OF CPR 32.19

This is a rule that is easy to overlook. In essence party is deemed to admit the authenticity of a disclosed document unless a notice is served under this rule

Notice to admit or produce documents

32.19

(1) A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.

(2) A notice to prove a document must be served –

(a) by the latest date for serving witness statements; or

(b) within 7 days of disclosure of the document, whichever is later.