BL-2023-NCL-000014 - [2025] EWHC 2074 (Ch)

Before turning to the facts of this case, I should say something about the approach to the evidence of witnesses who first set out their evidence in written statements, verified by a statement of truth, and who are called at the trial to give oral evidence under oath, first being asked to confirm the correctness of their witness statement(s) made by them and then to be asked, by way of cross-examination, questions about their evidence and the case. The court will usually have to assess the credibility of the witness, in terms of their reliability by reference to their honesty and their ability to recall the facts in relation to events that may have been some years ago by the time that they make their witness statement and the time at which they give oral evidence.

The most helpful guide to the court is usually the contemporaneous documents as well as the inherent probabilities. The court will obviously consider what the witness says in court but has to be careful as to how it does this. In this respect I repeat what I have said in other cases.

As regards assessing evidence, and especially oral evidence, I have well in mind the main authorities customarily turned to by the Courts and Counsel. So far as memory goes, it is important to note that the witnesses, or most of them, have been over matters on a number of occasions over the years and that this can affect their memory.

As regards the difficulty of assessing the “demeanour” of a witness as a guide to truth and accuracy and the effect on memory of a continued re-consideration of a case and of documents over time, I would also refer briefly to the convenient summary set out in the judgment of Warby J (as he then was) in R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin) at paragraphs [39] to [41] where he said (with emphasis removed, and inserting sub-paragraph numbers for bullets in the extracts from the judgment in the Kimathi case, referred to below):

“[39] There is now a considerable body of authority setting out the lessons of experience and of science in relation to the judicial determination of facts. Recent first instance authorities include Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3650 (Comm) (Leggatt J, as he then was) and two decisions of Mostyn J: Lachaux v Lachaux [2017] EWHC 385 (Fam) [2017] 4 WLR 57 and Carmarthenshire County Council v Y [2017] EWFC 36 [2017] 4 WLR 136. Key aspects of this learning were distilled by Stewart J in Kimathi v Foreign and Commonwealth Office [2018] EWHC 2066 (QB) at [96]:

“i)

Gestmin:

(1)

We believe memories to be more faithful than they are. Two common errors are to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; (2) the more confident another person is in their recollection, the more likely it is to be accurate.

(2)

Memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is even true of “flash bulb” memories (a misleading term), i.e. memories of experiencing or learning of a particularly shocking or traumatic event.

(3)

Events can come to be recalled as memories which did not happen at all or which happened to somebody else.

(4)

The process of civil litigation itself subjects the memories of witnesses to powerful biases.

(5)

Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by a lawyer who is conscious of the significance for the issues in the case of what the witness does or does not say.

(6)

The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts. “This does not mean that oral testimony serves no useful purpose… But its value lies largely… in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth”.

ii)

Lachaux:

(7)

Mostyn J cited extensively from Gestmin and referred to two passages in earlier authorities. (Footnote: ¹)I extract from those citations, and from Mostyn J’s judgment, the following:-

(8)

“Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the incident occurred. Therefore, contemporary documents are always of the utmost importance…”

(9)

“…I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective fact proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities…”

(10)

Mostyn J said of the latter quotation, “these wise words are surely of general application and are not confined to fraud cases… it is certainly often difficult to tell whether a witness is telling the truth and I agree with the view of Bingham J that the demeanour of a witness is not a reliable pointer to his or her honesty.”

These more recent iterations of judicial experience and scientific learning provide much of the rationale underlying the new regime governing witness statements and best practice in relation to their preparation, in the Business and Property Courts (as from 6 April 2021). Those practices are often followed explicitly by practitioners when preparing factual evidence for witnesses in county court cases, especially if they cover the same subject matter that would, in the High Court, be brought in the Business and Property Courts. As paragraph 1.3 of the Appendix to Practice Direction 57AC sets out:

“1.3

Witnesses of fact and those assisting them to provide a trial witness statement should understand that when assessing witness evidence the approach of the court is that human memory:

(1)

is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but

(2)

is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore

(3)

is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.”

Also of importance are the requirements that the witness confirm in his witness statement various matters in accordance with CPR PD57AC paragraph 4.1 and that (unless the statement is signed when the relevant party is a litigant in person or the court orders otherwise) there should be a certificate of compliance by a relevant legal representative.

The witnesses for the Claimant, Tokyo, were:

Mr Mellor, as managing director of Tokyo, gave the main evidence and was cross-examined for just over a day.

Much of his cross-examination was about the details of the deals that were discussed and his understanding and beliefs. The relevant contemporaneous emails are in layman-businessman’s speak rather than legal speak (in terms of setting out the economic results of proposed deals rather than the detailed legal transactions needed to bring the same about) and key documents (e.g. draft proposed company reconstructions) were not in evidence before me. At the end of the day the key question is whether Mr Mellor caused Tokyo to pay the sums of over £745,000 for the 2022 Festival that it did in the genuine and bona fide belief that there was a deal between himself and Mr Betesh (as key player for Ticketline and SSD) which only had to be reduced to relevant legal components, recorded in documents and executed. The precise details of such deal in every respect (some of which detail had still to be worked out) are not really significant.

I am satisfied that I can rely upon the evidence of Mr Mellor which, upon the key points, was consistent with the contemporaneous documents and the probabilities and which I find to have been given truthfully and to be accurate.

Mr O’Sullivan, as Finance Director of Tokyo since its incorporation, gave limited evidence in his witness statements about dealings, which were essentially between Mr Mellor and Mr Betesh, leading up to Tokyo starting to fund the 2022 Festival. Most of his evidence in this respect was what he had been told by Mr Mellor though, to the extent he saw emails at the time, those emails fitted in with that narrative. He also gave some evidence about the position after the festival and the attempts of Tokyo to recover sums. He also deals, in his witness statement, with the payments, between 29 July and early August 2022, of some £746,000 by Tokyo. Ultimately the evidence of such payments was not challenged. I have no hesitation in accepting Mr O’Sullivan’s written and oral evidence, which was given carefully and was convincing not least in being consistent with the contemporaneous documents.

Mr Betesh was the sole witness for Ticketline. His witness statement was dated 05 February 2025. It did not contain a solicitor’s certificate of compliance as required by CPR PD 57AC. He gave oral evidence for just over a day.

There were a number of points in the Defence, containing a statement of truth by Mr Betesh, and his written evidence which, when added together and in the light of his oral evidence demonstrated attempts by Mr Betesh improperly to colour the picture in a manner favourable to the Defendant. I refer to some of these in later parts of this judgment. In his written submissions, Mr Stubbs identified a number of respects in which the Defendant’s statements of case and/or answers to request for further information and/or Mr Betesh’s written evidence was shown to be the subject of widespread error. Some are minor looked at by themselves but taken together there are many and they betray a pattern of seeking to put forward a false position to bolster the Defendant’s defence and/or its chances of success.

In addition, and despite a very clear disclosure order requiring (as agreed) disclosure under Model D (extended disclosure) and a disclosure certificate signed by Mr Betesh as regards the Defendant’s disclosure, there were, in my judgment, huge gaps between the disclosure as ordered and that provided by the Defendant. This was in the face of several pertinent and precise letters from Tokyo’s solicitors chasing for certain documents or classes of documents in the light of spelled out failures in the disclosure given by Ticketline. Mr Betesh’s constant refrain in cross-examination, when asked why there had not been disclosure by the Defendant of documents that, in cross-examination he asserted existed (and supported the Defendant’s case), was that he did not know that they had not been disclosed and/or he had not thought that they were relevant. Mr Betesh is a businessman. He is not stupid. The disclosure review document which set out documents to be produced largely deals with the issue of relevance by defining classes of documents to be produced, so that the simple question was what documents fell within the relevant categories as described. He had the benefit of legal advice. I simply do not accept his evidence on this point. I also draw inferences adverse to his general credibility. I do not accept that documents that he relied upon before me but which have not been produced by the Defendant are documents which show matters that he relied upon.

I should mention one further matter that I deal with later in this judgment. Mr Betesh asserted that certain legal documents containing what were intended to become binding heads of terms to give effect to a deal primarily agreed between him and Mr Mellor but involving a number of companies contained false statements of fact and that Aticus Law, the relevant firm of solicitors, was aware of this and were willing complicit participants in this process. (This in fact caused them to withdraw from the case.) Mr Betesh claimed that he did no think that these falsities mattered. The explanation that the legal documents contained false statements was to support the case that he had run on behalf of Ticketline in these proceedings and in his evidence and which in certain respects was markedly inconsistent with what was stated in the documents prepared with the input of lawyers and which were being put forward to Mr Mellor and Tokyo. The result is that Mr Betesh was either propounding falsehoods in relevant respects when he put forward the relevant Heads of terms documents or he was lying to the court. In either event, his credibility as a witness before me was inevitably seriously damaged.

In his written closing submissions, Mr McGarry realistically accepted:

“The Court will no doubt approach the evidence advanced by Mr Betesh with particular care. That evidence was characterised by a series of unheralded admissions against the Defendant’s interest and case, and the notable concessions relating to the preparation of the ‘July Heads of Terms.’ (footnotes omitted).

My general conclusion is that I cannot rely upon Mr Betesh’s evidence where contested or contradicted by other reliable witnesses unless supported by contemporaneous documents or the inherent probabilities and that I should indeed treat his evidence with very great caution. As well as the sort of matters already referred to, I should add that his evidence was on occasions vague, unclear and inconsistent with what he had said on other occasions in the course of giving evidence.

There is one final matter that I should address. In his closing written submissions, paragraph 6, Mr McGarry said:

“In being realistic, it is also important to recognise that a witness

under cross examination may reveal that historic documents or prior evidence lacked candour, without thereby wholly undermining credibility⁴. Ultimately, the issue of how to approach credibility is one of weight, whilst consistently bearing in mind that the Claimant bears the persuasive burden throughout.”

The content of footnote 4 was as follows:

“This is the basis of the so-called “Lucas direction” in criminal proceedings.”

The so-called Lucas direction (after a criminal case of that name) is a direction sometimes given to juries in criminal trials. The general point is equally applicable in civil trials and is a reminder to the finder of facts that there may be reasons why a person lies on one occasion and that a lie on one occasion does not necessarily mean that what they say on other occasions should be assumed to be a lie too or treated as being less worthy of credit. The current legal summary relating to the direction is set out in the Crown Court Compendium (July 2024, April 2025 update), Volume 1 and is as follows, (footnotes omitted):

“1.

A defendant’s lie, whether made before the trial or in the course of evidence or both, may be probative of guilt. A lie is only capable of supporting other evidence against D if the jury are sure that:(1) it is shown, by other evidence in the case, to be a deliberate untruth; ie it did not arise from confusion or mistake; (2) it relates to a significant issue; (3) it was not told for a reason advanced by or on behalf of D, or for some other reason arising from the evidence, which does not point to D’s guilt.”

As I shall go on to explain, I am satisfied that relevant statements in the Heads of Terms were in fact true, but that it was his evidence to this Court saying that they were false which was untrue. The reason for that untruth was clearly to bolster the Defendant’s defence as the relevant statements in the documents were inconsistent with the Defendant’s case. As such, Mr Betesh’s credibility as a witness of truth is damaged.

For completeness I should also mention that there was a written number of formal admissions made by Ticketline by a document dated 2 April 2025. These were as follows:

As regards the first of these admissions, in the answer to a Part 18 request it had been said that Ticketline had never received an instruction from SSD to facilitate refunds in relation to the 2022 Festival, whereas there were contemporaneous emails showing this to be untrue. One of the disclosure issues was Ticketline’s refund policy in general. Documents showed refunds effected by Ticketline between October 2017 and January 2023 of over £1.2 million in relation to events organised by SSD.