HP-2020-000016 - [2025] EWHC 1451 (Ch)

During the first day of Mr Larian’s cross-examination on Thursday 17 October 2024, he was twice warned by the court about the purdah rules for witnesses giving evidence, in terms which reminded him that he could not talk to his legal team or anyone else about the case until the end of his cross-examination the following day. He confirmed that he was aware of the rules.

Before the start of the hearing the next day, however (i.e. Friday 18 October), the court was informed that after court on the previous evening (at 17:59) Mr Larian had sent an email concerning the case to his counsel Ms Wakefield, two of his solicitors, Stephen May and Nicholas Pimlott, and the head of litigation at MGA, Richard Grad. That email carried the subject line “Nick Mowbray” and set out a series of questions which Mr Larian proposed should be put to Mr Mowbray in his cross-examination which was scheduled for the following Monday. That email was, quite properly, immediately deleted by each of the recipients, and a reply was sent to Mr Larian from Mr Pimlott (at 18:02) saying “We cannot read this email. As explained, please do not email, text or otherwise contact us while you are in purdah before you have finished giving your evidence tomorrow.”

In discussion with Ms Wakefield and Ms Kreisberger at the start of the hearing on the Friday morning, it was agreed that Mr Larian would hand over his mobile phone to his solicitors until the end of his cross-examination that day, and that at the end of the day it would be examined by Ms Wakefield and his solicitors to ascertain whether Mr Larian had communicated (or had sought to communicate) with anyone else during the period while he was being cross-examined. The court could then consider what further steps to take in relation to this matter. During the course of that discussion, Mr Larian said that his email to his solicitors had been a mistake. He did not disclose that he had indeed sent further messages to other people.

Following the review of Mr Larian’s mobile phone by his counsel and solicitors, MGA filed over the weekend a further (fifth) witness statement from Mr Larian, and a witness statement from Mr May, with exhibits to both. That evidence revealed that Mr Larian had sent a number of messages concerning the case during the evening after the first day of his cross-examination on 17 October, in addition to the email to his legal team. These included the following WhatsApp message sent at 17:44 to Manny Stull, the chairman of Moose Toys, asking for a letter relating to a dispute between Moose Toys and Zuru Toys:

“Hi. I am in court and next week Nick is testifying. Please send me a copy of your cease and [desist] letter. I want a loyal to show that to Nick and get his reaction on the record. Then I will send you that testimony for you can use yours.”

In addition, between 08:46 and 09:54 the next morning, Mr Larian had sent a series of WhatsApp messages to Sara Taylor, the managing director of MGA UK, asking for information as to the sales of the Little Tikes brand by The Entertainer and Smyths, for the most recent year and also for 2017 and 2018. He also specifically asked whether The Entertainer was buying a particular Little Tikes toy called Story Dream Machine. Ms Taylor answered Mr Larian’s questions, although by the time he recommenced his cross-examination he had not read her response to the last of those questions. Mr Larian’s counsel and solicitors had not been aware of these further messages (or any of the other messages sent by Mr Larian) during the discussion at the start of the hearing on the Friday morning.

It was also apparent that Mr Larian had used the information he had received in his evidence on the second day of his cross-examination. After the initial discussion about his breach of purdah on the Friday morning, that cross-examination had recommenced, and as soon as it did so Mr Larian said that he wanted to add one comment to his testimony from the previous day. He then went on to make comments about The Entertainer’s sales of the Little Tikes brand in 2017/18 and 2024, with sales figures given purportedly “to the best of my recollection”, asserting that these proved that The Entertainer and other retailers were more powerful than the toy vendors. Later on the same morning, Mr Larian twice repeated his comments about The Entertainer’s failure to purchase the Little Tikes brand. What Mr Larian did not reveal, at the time, was that his comments about Little Tikes were based on the information he had received from Ms Taylor before court that morning.

Mr Larian’s subsequent witness statement explaining his breaches of purdah sought to explain his email to his legal team as having been sent by mistake: he said that he had intended to save it in draft, to send later, but then sent it by accident. He sought to explain his messages to others, including Mr Stull and Ms Taylor, on the basis that he had not properly understood the purdah rules, and did not consider those messages to be in breach of the instructions he had been given.

Cabo considered Mr Larian’s explanations to be unsatisfactory, and applied to recall him for further cross-examination on this issue. As he had by then left the country, he was cross-examined remotely from the offices of a law firm in Los Angeles on the afternoon of 4 November 2024, the last day of evidence before the break for closing submissions to be written. His answers were defensive and maintained the position set out in his witness statement.

Mr Larian’s evidence on this issue was not, in my judgment, entirely candid. Mr Larian is an intelligent businessman, who accepted that he had been warned about the purdah rules by his solicitors prior to his cross-examination, as well as by the court during his cross-examination. Mr Larian’s communications with Mr Stull and Ms Taylor were quite obviously discussions about the case, and I do not accept his claim that he did not understand that these were prohibited by the purdah warnings he had been given. In Mr Larian’s message to Mr Stull, he explicitly said that he was in court and wanted a document to use in Mr Mowbray’s cross-examination. In the case of Ms Taylor, he asked for information which he went on to relay (repeatedly) in his evidence. His claim to have emailed his legal team accidentally was likewise unconvincing. The more likely explanation is that Mr Larian understood the purdah rules but did not take them seriously, and did not consider the implications of those rules for his communications with his lawyers and others during his cross-examination. It probably did not even occur to him that these communications might be revealed to the court.

As Patten LJ noted in Jarvis v Searle [2019] EWCA Civ 1, §§23–24 and 28, witnesses are commonly given warnings by the trial judge not to discuss their evidence until after it has been completed, the purpose being to ensure that the evidence given by the witness is their own best recollection, untainted by any influence or assistance from a third party. Where a witness does, notwithstanding such a warning, attempt to communicate with a third party, but does not get a response, there is no damage to the integrity of the trial process. If the witness does, however, discuss some matter relevant to their evidence with a third party, that may (if appropriate) lead the court to discount or give no weight to that evidence.

In the present case, MGA invited the court to deal with the matter by striking from the record Mr Larian’s repeated comments about Little Tikes, on the second day of his cross-examination; but said that Mr Larian’s breaches of the purdah rules did not detract from his general credibility. I agree that the comments about Little Tikes must be disregarded. They were made on the basis of the information obtained by Mr Larian that morning before the court hearing recommenced. I do not, however, agree that this incident is irrelevant to the assessment of Mr Larian’s credibility. On the contrary, Mr Larian’s conduct and his unsatisfactory explanations for that conduct reinforce the conclusion that he was an unreliable witness.