WITNESS EVIDENCE AND WITNESS DEMEANOUR: A GEM OF A CASE: A WITNESS SUMMONS CAN LEAD TO UNWELCOME SURPRISES

Issues of witness demeanour and credibility figured highly in the judgment of District Judge Dinan-Hayward in TM v AM [2023] EWFC 247.   It is an interesting story which shows the risks of compelling a witness to attend court and of pursuing an application when, as it turns out, there is no evidence to support it.  Some may think that the case also contains an salutary warning about the dangers of misplaced marketing attempts.

“One of the problems with a witness summons is that the applicant for the witness summons can never be quite sure what is coming through the door or what the witness will actually say.  I suspect that nobody could have been prepared for the colourful evidence of the auctioneer yesterday.”

THE CASE

The applicant  (ex) husband applied to set aside a consent ordered made in matrimonial proceedings.  The major ground of the application was that the (ex) wife had concealed the fact that she had ownership of a diamond ring worth £2 million. This ring, it was alleged, had been bought at a car boot sale and subsequently found to have a high value.

The wife denied having anything to do with the ring.

The husband called the auctioneer who was responsible for the account that a ring had been purchased and of its value. The account the auctioneer gave was a total surprise.

THE BACKGROUND TO THE APPLICATION

The second basis of the Husband’s application is the issue in the case. This is the Husband’s assertion that the wife has concealed the ownership of a diamond ring, with an estimated value of £2 million. The Husband submits that this is material non-disclosure, which if I find to be correct, would undermine the basis on which the consent order was entered into.  What the husband says in his witness statement was that his knowledge of the diamond came through an anonymous tip off, which I note came in early November 2021 and therefore in the chronology of events, I find pre-dated the consent order being approved by the Court.  The husband corrected his witness statement in his oral evidence to state that “anonymous tip off” was probably the wrong description, as the tip off was not anonymous to him, but he wanted to keep the identity of who had given him this information private to him and did not want to disclose it.

13. Throughout the duration of these latter proceedings of the husband’s application, Auctioneers and Valuers in Northumberland have become involved. They had been commissioned by the vendor to sell the ring. In particular, an auctioneer and partner in the business became the subject of an application for disclosure as a non-party, made by the Husband.  The auctioneer responded to the original disclosure application by declaring that neither the wife nor the wife’s mother, matched the description of the vendor, and that nobody with either surname was involved in the contract to sell the diamond. 

THE EVIDENCE OF THE AUCTIONEER

The auctioneer who had featured in the story about the “found” diamond ring was witness summonsed by the husband.  However the evidence was a total surprise.

The evidence and the Auctioneer

14. Disclosure orders were made by District Judge Clow against the Auctioneers as a non-party, and I think it would be fair to say that they have largely not been complied with.  There has been the odd document that has been disclosed to the parties, but nothing like the disclosure that was anticipated by District Judge Clow when he made the order that was the subject of that application. The Auctioneers are in breach of that order to a significant extent. Unhappy with the breach of the order, the Husband then sought a witness summons to be issued against the auctioneer to attend a production appointment and then the final hearing.

15. I heard the evidence of the auctioneer first.  One of the problems with a witness summons is that the applicant for the witness summons can never be quite sure what is coming through the door or what the witness will actually say.  I suspect that nobody could have been prepared for the colourful evidence of the auctioneer yesterday.  I think it is fair to say that the auctioneer was very angry having driven to derby from Northumberland.  In relation to looking at how a witness gives evidence, in my judgment, witness demeanour should hold very little weight.  Lord Leggatt gave a speech in November 2022 to the At A Glance conference, at which I was present, where he dealt with the dangers of allowing witness demeanour to prejudice a judge’s view of what that witness was actually saying. I find Lord Leggatt’s guidance gives a useful check.  

16. I must put how the auctioneer presented in giving his evidence to one side.  That demeanour does not go to the veracity or otherwise of what he had to say, which was this: he said that he had sworn on the bible and so this was the truth. The story of the diamond being found at a car boot sale, being valued by his auction house, and then being given a value of £2 million, was just that, a story, completely fabricated by him, to stir up interest in his failing auction business in a post pandemic era.  The car boot story, read by the husband, given to the press and the world in general was a lie, to generate some media interest for this diamond and the commission a sale would bring to his business.

    14. The auctioneer stated that he was desperate at the time of the lie, to try and save his business, of which he was a director and shareholder.  It was a 100-year old company, something that he wanted to impress on the court, and the businesses’ recovery from Covid did not go according to plan.  He explained to me his modest roots and how he had been able to build up the company from a relation, I believe his father or grandfather, and he was proud of his achievement.  What he told me was that he could not have envisaged the fallout or aftermath of the story about the diamond, and he said on a number of occasions that there were hundreds of TM’s, all claiming that the diamond was theirs or there was some personal link to the diamond.  He stated that the diamond actually came from Antwerp and because of a personal connection in his company, the owners were allowing his company to sell it for them.  It was a 34 or 36 carat diamond and the owners owned an even bigger diamond which may have been 54 carats.  If the auctioneer and his company had been successful in selling the smaller diamond for £2 million or so, then they could have secured the sale of the bigger diamond as well.  He told me that the sale of this diamond would have given his company a commission of around £400,000 and that would have saved the company, or at least reversed the diminishing performance of the company in times of post-Covid.

17. The connection between the auctioneer, the diamond and the seller was his company’s gemmologist, and he said that the diamond had been sent from Antwerp to either an office of his company in Hatton Garden, or a sister office, I was not quite certain, but it was certainly an office that had the auction house logo.  I was shown a video of the diamond arriving at the London office and being opened by the auctioneer. The video has the Hatton Garden auction house logo in the background and I was able to hear the excitement of the auctioneer in receiving the diamond. Due to the falling out or unhappiness of the vendor of the car boot story line that had suddenly accompanied the diamond, the owners immediately demanded it be returned to Antwerp and there was no sale for the Northumberland auction hose.  The auctioneer said that it never went, whilst in his hands at least, further north than Hatton Garden in London.  He told me that he had to take out specialist insurance to convey the diamond back to its owners. He said that the fallout with the sellers, who, he explained to me, were worth billions of pounds, was devastating for him. When they saw their diamond splashed all over the British newspapers, they wanted to know what was going on and wanted the diamond back, and the auction house lost the sale.

18. In my judgment, the auctioneer was not an impressive witness.  I find that he was excitable, agitated and aggressive.  He had formed a negative view of the husband and aligned himself, in my judgment, with the wife, who he perceived as wronged by the Husband.  He referred to the husband, in my judgment , unhelpfully, as greedy, and I was surprised at the aggressive nature of his evidence, which was not warranted from the appropriate questions that were being asked of him.

The video

20. The auctioneer did not bring with him many, or indeed any, documents, that he was prepared to show me, save for the video on his phone.  I had anticipated an exercise where we could ensure that all documents he had been ordered to supply were in the court bundle, but it became obvious to me at a very early stage in that exercise that there were not any documents to check off.  I find that he was in breach of the order of District Judge Clow.  What the auctioneer says is that he did not have those documents to disclose in the first place.  He gave a number of reasons, but the main one seemed to be that the company was now in liquidation and any documents he did have were with the official receiver.  In my judgment, he did not seem to understand the seriousness of his breach of a court order. At one stage he accused me of being a kangaroo court, which, underlined to me that he did not understand why he was here or what he had to do, which was really to answer questions in as straightforward a way as possible and to tell the truth.

21. However, I do find that this is the first time that he has told anybody the explanation for the story, and he said that included his employees, as he had had to ensure that nobody else was in on the lie.  I place very little weight on what he said, but the weight that I do place is on the video he showed the court.  It seems from the video that the diamond was received, I find on the balance of probabilities, in the post or a courier or however it was transported, to his offices or his sister offices in Hatton Garden, and I find that it came from Antwerp, and on the balance of probabilities it was returned to Antwerp.  I find that there is no evidence that it ever went north of London, apart from being in the post and being opened at Hatton Garden, and certainly not in a car boot sale in Northumberland.  I find that the story of the car boot sale was false, but having provided such a massive fabrication in terms of what happened to this diamond, and such a massive lie which included duping the British press, it seems extraordinary for him now to come to court and say that I should believe every word that comes out of his mouth.  As I say, an unimpressive witness, but I find that the video is corroborative evidence of what he says.

THE WIFE’S EVIDENCE

The Wife’s evidence.

22. Turning then to the evidence of the wife.  Her evidence is in her witness statement and that is signed by a Statement of Truth.  She was cross-examined, at length, appropriately by Mr Malik.  She was also cross-examined about the miscalculation in the ES2-type document, I do not think it was actually an ES 2 but it was certainly a schedule of assets, and her form E and the new D81, in terms of the equity in the home and the debt.  I find from that evidence that the miscalculation was quite modest.  In the scheme of things, it was a minor miscalculation or error, and I certainly do not find on the balance of probabilities that there was a miscalculation that was designed in any way to mislead the court.  On the balance of probabilities, I do not think that is evident before me.  Certainly, there were different figures, but I am very used to seeing variations of parties’ figures and the court will usually take a broad brush view.  They were certainly minor when looking at the intention of the consent order, which was to give the husband 100 per cent of the matrimonial asset, being the former family home.

23. Cross-examination of the wife then turned to the diamond.  The wife gave evidence in line with her witness statement.  She denied possession or anything to do with it, and Mr Malik, of course, has had to quite rightly accept that there is no direct evidence to rebut the assertion from the wife.  In terms of his cross-examination there is nowhere to go with that, where there is a blanket denial from the wife that she had any involvement with this diamond.

24. There was also a police report.  The Wife was cross-examined on this document.  The Husband had reported the Wife’s alleged fraud to the police. The police’s subsequent report, the wife says, contains a mistake that wrongly connected her to the diamond.  This was corrected by a subsequent letter from the police, and I find that there was an error made by the police but it was rightly corrected by them so as not to implicate the wife.  After this finding, there is therefore absolutely no direct evidence to challenge the wife’s assertion that she knew nothing about the diamond, save the husband’s unshakeable belief that she does.  I found that she was a straightforward and credible witness.

NOT A SHRED OF EVIDENCE TO SUPPORT THE HUSBAND’S CASE

The Husband’s evidence.

25. I then heard from the husband.  He has filed a witness statement, as I have referred to.  That witness statement is signed with a Statement of Truth.  There was an amendment in terms of the anonymous tip off, in that it was not anonymous to the husband, but he did not want to disclose the name of the person as the source of his belief.  This is an obvious lacuna in the presentation of the Husband’s case, as it is the primary source from which the Husband believes the diamond belongs to the Wife. I still do not know who or what caused him to have this belief.

26. In my judgment the husband is unfailing in his belief that the diamond is the wife’s, and that she has benefitted from either the diamond, or the net proceeds of sale.  The husband gave evidence in a manner that suggests to me that he truly believes that the diamond is or was the wife’s, and she had benefitted from it.  However, I find that there is not a shred of evidence to support his case.  There was not a shred of evidence on the balance of probabilities before the hearing started, there certainly was not after the evidence of the auctioneer and the court seeing the video, and I was surprised that the husband did not wish to reconsider his position after the evidence of the auctioneer.  That is a matter for him, but the auctioneer’s evidence was the height of the husband’s case.  Despite the pretty appalling manner in which the auctioneer gave his evidence, he did not support the husband’s case, which the husband accepted in his own evidence. There was no other evidence, apart from the Husband’s overwhelming belief, which I find on the balance of probabilities, to be wrong.

27. The husband accessed the wife’s private emails during the period leading up to the consent order.  Some of them contained legal advice from her solicitors that the Husband just should not have been a party to.  I find that the husband wrongly accessed her emails as he was desperate to find anything that would support his case.  They have no place in the husband’s hands, but they support the Wife’s case that she had nothing to hide.

28. There are also outstanding costs orders against the husband which have not been paid.  The implications of a Hadkinson direction were discussed at the PTR which was raised by myself, but the wife wanted to proceed and draw a line under these proceedings.

29. In terms of the weight that I put on the husband’s evidence, I find that the husband is genuine in his belief that the wife has sold this diamond.  I find that on the balance of probabilities he is unable to consider his position objectively and to look at the lack of any evidence that supports his contention. He says I must find that he is right because he says so. I place little weight on his demeanour.  He clearly has been upset at some of the allegations that have been made and the way matters have unfolded in this court hearing.  I put that to one side when I consider his evidence, it is not relevant for me to consider in dealing with the issues in this case. I find however that he has convinced himself that he is right.