WITNESS CREDIBILITY:”BLAMING LEGAL ADVISERS FOR LEGAL DOCUMENTATION”: A CASE IN POINT

May 22, 2023 · by · in Avoiding negligence claims, Civil evidence, Uncategorized, Witness statements

The judgment of HHJ Richard Williams (sitting as a High Court Judge) in Rancom Security Ltd v Girling & Ors [2023] EWHC 1115 (Ch) provides an interesting example of the assessment of witness credibility.  It also highlights the point that litigants, or witnesses, who find themselves in a corner will often attempt to blame their own lawyers for any evidential or procedural failures.

“In Painter v Hutchinson [2007] EWHC 758 (Ch) at [3], Lewison J (as he then was) identified a non-exhaustive list of indicators of unsatisfactory witness evidence including:…

iii) Blaming legal advisers for documentation (statements of case and witness statements);”

THE CASE

The claimant company brought an action against the defendants, its former employees and the company they had formed, alleging they misused confidential information and made maliciously false statements. The defendants had set up in competition with the claimants and had contacted the claimant’s customers.   Some of the issues went to the credibility of the witnesses.

 

GUIDANCE AS TO CREDIBILITY

The judge considered the relevant guidance for assessing the credibility of witnesses.

 

Assessment of the witnesses
Indicators of unsatisfactory witness evidence
    1. In Painter v Hutchinson [2007] EWHC 758 (Ch) at [3], Lewison J (as he then was) identified a non-exhaustive list of indicators of unsatisfactory witness evidence including:
i) Evasive and argumentative answers;
ii) Tangential speeches avoiding the questions;
iii) Blaming legal advisers for documentation (statements of case and witness statements);
iv) Disclosure and evidence shortcomings;
v) Self-contradiction;
vi) Internal inconsistency;
vii) Shifting case;
viii) New evidence; and
ix) Selective disclosure.
Interference with memories
    1. In Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm), Leggatt J, as he then was, made the following observations about the interference with human memory introduced by the court process itself:
“[19.] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.
[20.] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.”

THE DEFENDANTS’ EVIDENCE IN THE CURRENT CASE

The judge was, on the whole, satisfied with the claimant’s evidence.  He was far from satisfied with the evidence called on behalf of the defendants.
D1 and D2
    1. I did not find D1 and D2 to be reliable or at times credible witnesses. The evidence of D1 and D2 was characterised and tainted by repeated and significant indicators of unreliable evidence. By way of examples,:
Shifting case/new evidence
    1. The written evidence of D1 and D2 was expressed in very similar terms. The agreed list of issues for trial includes “Did D3 approach customers of C using data from C’s Alarm Master database… or by other legitimate marketing activity..” No doubt recognising the importance of this issue, D1 and D2 each addressed it in some detail in their witness statements as follows under the sub-heading “How the Third Defendant has Obtained its Customers” :
D1
“[117] …… After 10 years of dealing with postcodes and individuals and marketing and selling [C’s] products, I had an innate knowledge of the postcode areas of England and Wales and their demographics…
Personal Knowledge Gained in the Industry
[118] Accordingly, with this knowledge of the various postcode areas and their demographics of which areas were the most likely to contain more customers than others, I was able to instruct our canvassers on areas that I knew were more profitable than others.”
D2
“[90] ……. I had worked in the industry for many years and had an intimate knowledge of the demographics of many areas in the UK.
Personal Knowledge Gained in the Industry
[91] Accordingly, with this knowledge of the various postcode areas and their demographics and my knowledge of which areas were most likely to contain more customers than others, I was able to instruct our marketing efforts on areas that I knew were more profitable than others.”
D1
“TPS Compliant Databases
[120] In addition to the knowledge which was in my head, I also purchase[d] TPS compliant databases from various agencies specifically requesting those postcodes that were the most promising.
[121] in order for the database companies to provide the information that was required, we had to give them parameters. The parameters which I set for the production of these databases were as follows:
i) Private home owners;
ii) Aged 55 or over;
iii) Home telephone numbers only (rather than simply mobiles);
iv) Has an existing alarm.
[122] It is not therefore surprising that many of the areas that we concentrated on were similar areas to [C], as these were the areas that I worked on during my time with [C]. I knew which areas were the most successful.”
D2
“TPS Compliant Databases
[92] In addition to the knowledge which was in my head, [C] also purchased TPS compliant databases from various agencies specifically requesting those postcodes that were the most promising.
[93] It is not therefore surprising that many of the areas that we concentrated on were similar areas to [C], as these were the areas that I worked on during my time with [C]. I knew which areas were the most successful.”
D1
“Advertising
[123] In addition, [D3] advertised in magazines, online, had an online presence and used social media to obtain customers.
D2
“Advertising
[94] In addition, [D3] advertised in magazines, had an online presence, used Checkatrade, and conducted door to door leaflet delivery. We also had recommendations and referrals from satisfied customers.”
D1
“Leaflet Drops
[124] I knew where the most profitable areas were and so did [D2]. As I was busy trying [to] establish the business, I asked [D2] to facilitate a leaflet campaign promoting [D3]. Leaflets were then delivered to the geographical areas that both myself and [D2] had experience of being of most beneficial.
[125] The process of delivering leaflets was organised by [D2] and assisted by Shirley Maconnell…..
[126] When I began a marketing campaign I knew from my knowledge and experience which areas to concentrate on and would select an area. [D2] and Shirley would concentrate on those areas, look out for monitored alarm boxes. Some may have been [C’s] customers, but this was only because [C] had customers in the areas that I chose. I did not specifically target [C’s] customers. [RD] had already admitted that [C] had not serviced 3000 customers, which was one third of their total customers. So I knew that the service provided by [C] was very poor and that many of the customers would be willing to move to a new provider, but already had police response. Accordingly, [D2] arranged to have leaflets delivered to properties with a monitored alarm bell box within the selected area, together with a number of houses either side of that property.”
D2
“Leaflet Drops
[95] I knew where the most profitable areas were, and so did [D2]. When the business began trading, I organised a leaflet campaign promoting [D3]. Leaflets were then delivered to the geographical areas that both me and [D1] had experience of being the best areas to sell in.
[96] The process of delivering leaflets was organised by [D2] and assisted by Shirley Maconnell.
[97] When I began a marketing campaign, I knew from my knowledge and experience which areas to concentrate on and would select an area. Together with Shirley we would concentrate on those areas and look out for monitored alarm boxes. Some may have been [C’s] customers, but this was only because [C] had customers in the areas that I chose. I did not specifically target [C’s] customers. I knew that the services provided by [C] was very poor and that many of the customers would be willing to move to a new provider, but already had police response. Accordingly, the I arranged to have leaflets delivered to properties with a monitored alarm bell box within the selected area, together with a number of houses either side of that property.”
    1. I do not consider that these striking similarities in the written evidence of D1 and D2 are in themselves an indicator of unreliable witness evidence, since, if true, it would potentially reflect a shared work experience. In addition, it would be wholly unrealistic to expect D1 and D2 not at least at some time to have discussed their recollection of events before committing them to writing. However, having apparently so carefully considered their written evidence, and on such a critical issue, it is in my judgment then even more remarkable that D1 and D2 sought to depart significantly from that written evidence when being cross examined. By way of examples,:
i) In their oral evidence D1 and D2 claimed for the first time that D3 had been gifted data by a friend of D3. D1 initially said in her oral evidence regarding this omission that unfortunately not everything was in her witness statement. However, later in her oral evidence, D1 sought somewhat unconvincingly to claim that the earlier reference in her witness statement to having “had meetings with suppliers” under the sub-heading “The Setting up of The New Business” somehow also meant meeting with her friend, who supplied the data. I note that the defendants’ defence also makes no express reference to having been gifted/loaned data, but only refers to “[26] … legitimate data purchases from third parties such as telemarketing information”;
ii) In their written evidence D1 and D2 stated that they decided to target those geographical areas across the country that they knew from working with C were likely to be the most beneficial. However, in her oral evidence, D1 said that initially D3 had only employed one engineer. When asked how that engineer could have covered the whole of the country, D3 said for the first time in her oral evidence that D3 initially (for a couple of months at least) only concentrated on the local market;
iii) In their oral evidence, D1 and D2 admitted for the first time that they had indeed targeted C’s customers, albeit only from late 2018 and after they learnt that C had lost its police response; and
iv) In their oral evidence, D1 and D2 claimed for the first time that they were able successfully to target C’s customers from late 2018 onwards, and despite a large proportion of those customers being TPS registered, by revisiting lead sheets that had been generated by the leaflet campaign in 2017.
    1. My distinct impression was that D1 and D2 were making up this evidence as they went along in an attempt to answer the questions put to them in cross examination in a manner consistent with their overall case.

 

BLAMING LEGAL ADVISERS

The judge considered aspects of the claim where there were shortcomings in the defendants’ disclosure, or where they blamed their legal advisers.
Disclosure shortcomings/blaming legal advisers
    1. According to the oral evidence of D1 and D2, the lead sheets were a vitally important component of the defendants’ case, highly relevant and clearly disclosable. However, they were not disclosed into these proceedings because D1 explained that they were deliberately destroyed as and when the leads were converted into sales. There are a number of serious problems arising from that explanation:
i) Prior to being disapplied by the case management order dated 1 July 2021, paragraph 3 of the Practice Direction 51U imposed duties upon the defendants from the time that they knew that they may become parties to the proceedings “to take reasonable steps to preserve documents in [their] control that may be relevant to any issue in the proceedings.” Further, paragraph 4 of the Practice Direction provided that the documents “to be preserved…… include documents which might otherwise be deleted or destroyed in accordance with a document retention policy or in the ordinary course of business.” The letter of claim was sent in March 2019 and yet from that time and even during the course of the proceedings, the defendants have apparently continued with a policy of destroying the lead sheets;
ii) Even if the lead sheets had been destroyed automatically on the signing of contracts with D3 such that they were no longer in the defendants’ control they should still have appeared in their list of documents dated 23 September 2021. In that part of the list marked “List and number here, the documents you once had in your control, but which you no longer have. For each document listed, say when it was last in your control and where it is now.”, it was stated –

“Information and documents contained on the laptop of Mr James Carr (former employee of the 3rd Defendant” (“Mr Carr”) and documents contained in a box that was in the control of Mr Carr. Mr Carr stole the laptop and the box and we are unable to recover them.”

It was the evidence of D1 and D2 that James Carr stole the laptop and the box in 2017. It was the evidence of D2 that the lead sheets generated by the 2017 leaflet campaign were, however, kept in another box that was not stolen by James Carr, which was why D3 was then able to use those lead sheets to target C’s customers from late 2018 onwards; and
iii) No explanation was given as to why those lead sheets that had not yet resulted in a sale, and so were not automatically destroyed, had not been disclosed. Indeed, D2 said in evidence that those particular lead sheets were still held back in the office.
    1. No documents relevant to D3’s alleged advertising campaign have been disclosed by the defendants. In her oral evidence, D1 said for the first time that such documents existed, since she had passed copies of the advertisements/invoices to her solicitor. However, she did not know what had happened to those documents and had not made any enquiries as to their current whereabouts.
  1. D1 stated in her written evidence that the data purchases had been highly focused by reference to parameters including that the consumer “Has an existing alarm.” During D1’s oral evidence, she was taken to the small number of invoices that had been disclosed in relation to the data purchases. None of them referred to consumers having an existing alarm. D1 then claimed that there were “lots more invoices” available, but the defendants had only been asked by the solicitor “to produce so many” and “give me a few”.

 

THE RESULT

The judge found for the claimant on the claims for breach of contractual duty of confidentiality, and conspiracy to injury the claimant by unlawful means. The claims for breach of fiduciary duties, dishonest assistance in the breach of trust and malicious falsehood were dismissed.

 

Tags: , , , , ,