Case No. EWHC-11-(IPEC)

14.The Claimant and the Defendants each called two witnesses. All four witnesses were skilfully cross-examined. Michael Warburton Senior 15.Mr Michael Warburton Senior is a director and company secretary of the Claimant, a family business for whom he has worked since 1974. As various male members of the Warburton family are mentioned in the evidence before me, I will use first names to differentiate them: in doing so, I mean no disrespect. Michael Senior gave evidence that the business now operated by the Claimant was started in 1967 by his father, Mr Robert Warburton Senior. Robert Senior named the business CORMETON – a portmanteau word combining elements of CORROSIVE, METAL and the family name, WARBURTON. Michael Senior’s brother, Mr Robert Warburton Junior, took over the business in 1968, and Michael Senior took over day-to-day operations in 1974. In 2014, Michael Senior’s son, Mr Michael Warburton Junior, took over the day-to-day operations of the business. 16.Michael Senior’s first witness statement set out the establishment of the Claimant, the creation of the Work (to which I return below), and the relationship between the Claimant and the Defendants. His second witness statement responded to the Defendants’ written evidence. 17.Counsel for the Defendants criticised Michael Senior’s evidence as being “exceptionally vague”, and contended that his inability to recollect some dates meant that I should treat his evidence with some care. I disagree. First, this criticism was never put to him. Second, Michael Senior was asked to recall events from many years ago, often of doubtful or peripheral relevance to the proceedings – including, for example, what make of vans were used by the Claimant at different times. I accept that the date of creation of the design drawings on which the Claimant relied is of importance to these proceedings, but it is unsurprising that he was unable to recall precise dates for what would have been at the time unimportant events. I found him to be an honest witness, doing his best to assist the Court. This does not mean that I have accepted all of his evidence: I have not. But in my judgment his evidence was honestly given. Anne Warburton 18.Mrs Anne Warburton is married to Michael Senior, and mother of Michael Junior. She is also a director of the Claimant, and began working in the Claimant’s business in 1996. Her first witness statement set out details of what she alleged was confusion between the Claimant and the First Defendant. Her second witness statement responded to the Defendants’ witness statements. 19.Counsel for the Defendant suggested that Mrs Warburton was “less than candid” in her oral evidence. He described her oral evidence as vague and difficult to follow, and urged me to approach it with great caution. Again, I disagree. Whilst there were facts from some years ago that Mrs Warburton could not recall, she was doing her best to assist the Court. She was an honest witness. John Aitchison 20.As noted above, Mr John Aitchison is the Second Defendant and a Director of the First Defendant. In his witness statement he gave his version of the relationship between the two businesses, and the split that occurred in 2003. 21.Counsel for the Claimant criticised Mr Aitchison as a dishonest witness. Specifically, it was submitted that Mr Aitchison lied in the closing moments of his oral testimony, when he contradicted his written evidence to claim that conversations which his witness statement stated had occurred with his “staff” were actually had directly with him. It does seem to me, having watched Mr Aitchison give his evidence and having reviewed the transcript, that it is likely that Mr Aitchison’s written testimony is to be preferred on this point, because it seems to me inherently implausible that Mr Aitchison would have used the expression “a number of [the First Defendant’s] staff” when he meant himself. Mr Aitchison was professionally represented, and had assistance in preparing his witness statement. There is very little in the issue itself, as Counsel for the Claimant conceded, but he went further, suggesting that I should therefore treat all of Mr Aitchison’s evidence with care. He submitted that where Mr Aitchison’s evidence is inconsistent with another witness’s evidence, I should prefer that of the other witness. Counsel for the Claimant submitted that this included the evidence of what was agreed in 2003, and submitted that I should prefer Michael Senior’s evidence to that of Mr Aitchison. Counsel for the Defendants submitted that Mr Aitchison had been nervous, but had given his evidence honestly. I accept that Mr Aitchison’s evidence at the end of his crossexamination was not accurate. But I do not consider that that infects the remainder of his testimony to a degree that I should discount it where there is evidence to the contrary. I consider that, overall, Mr Aitchison was doing his best to assist the court. As will be apparent from what follows, there are facts on which his memory has failed him, and I have concluded that I prefer other evidence to the evidence given by Mr Aitchison on some issues. But having had the benefit of the totality of Mr Aitchison’s evidence, and in particular having seen him give his oral testimony in cross-examination, I do not conclude that Mr Aitchison was dishonest in his written testimony or in his crossexamination up to the last moments I have mentioned above. Stephen Rush 22.Mr Stephen Rush is a director of the First Defendant. He started in the First Defendant’s business in 2002, shortly before it moved out of the Claimant’s premises in 2003. He provided a witness statement setting out his views on the relationship between the Claimant and the First Defendant, and what he saw as the changes to that relationship since Michael Junior took over day-to-day management of the Claimant. He also provided some evidence which sought to suggest that the Claimant benefits from the association between the Claimant and the First Defendant. 23.Counsel for the Claimant submitted that Mr Rush’s version of some conversations he had had with Mrs Warburton was a “statement of what he wants to believe rather than a record of what was actually said”. As I have set out below, Mrs Warburton was not asked about those conversations in cross-examination, so I accept what she said about them in her written evidence. That also means that I reject Mr Rush’s version of what Mrs Warburton meant by what she said to the extent that it differs from what Mrs Warburton said in her statements. This does not, however, mean that I consider Mr Rush a dishonest witness – he was trying to assist the court, but I am unable to accept what he said about exchanges with Mrs Warburton because it was not put to her that her version of events was untrue. 24.Each of the witnesses was asked to recall conversations and events from, in some cases, many years ago, in circumstances where there was not a thorough or complete documentary record of all that happened. To the extent that there are documents, the Court can read them, and ascertain their meaning – questions to the witnesses as to what they thought those documents may have meant did not assist me. Neither counsel put to me that I should prefer any of the oral testimony to the written record where it was available. However, given the “defences” to infringement which have been raised by the Defendants, I must piece together the events that have occurred as between the two businesses since 1989, so as to ascertain the legal consequences for the parties. Of course, much of what has happened in that time is irrelevant to the determination of the issues in dispute – and each side sought to put its own spin on various events to assist its case.