Case No. IP-2018-000200

Michael Penhallurick 28.Mr Penhallurick gave clear and direct answers to the questions put to him in cross-examination. He made realistic concessions during the course of what appeared to me to be his honest attempt to explain matters as he saw them. 29.Time was taken up with questions about comparisons of source code. This arose from disclosure given by Mr Penhallurick very late in the day. It is enough to say here that the disclosure neither assisted nor damaged Mr Penhallurick’s case and I do not think that the answers he gave about the late disclosure affected his credibility. John Green 30.John Green was Managing Director and Chairman of MD5 from 2003 until his retirement in 2012. Counsel for Mr Penhallurick rightly accepted that Mr Green gave his evidence in good faith. Criticisms were made about Mr Green’s uncertainty regarding the date on which Mr Penhallurick had demonstrated the manual version of his VFC method and Mr Penhallurick’s initial 12-week contract but these were not central. I think Mr Green was doing his best to correct himself where he believed he should. 31.More relevant was Mr Green’s evidence about the November 2008 Agreement, where he was required to reflect again on what was meant by a term in that agreement: “access code”. I discuss this below. I do not accept the suggestion made that his answers undermined the reliability of his evidence. Geoffrey Boyd 32.Mr Boyd is a former Financial Investigator with the South Yorkshire Police Fraud Squad and the Money Laundering Team of the National Crime Squad. In September 2003 he set up MD5 with his uncle Mr Green and his cousin Adrian Green. He was a director of MD5 and took over as Managing Director when Mr Green senior retired. 33.Mr Boyd was a very good witness and as counsel for Mr Penhallurick rightly observed, he gave his evidence straightforwardly. James Clark 34.James Clark is the sole director of a company called Data Synergy UK Ltd. He has a master’s degree in forensic computing. 35.MD5 filed three witness statements from Mr Clark. No objection was taken to the first, dated 13 March 2020. Even so, the contents of that witness statement are to my mind not free from difficulty, to which I will return. 36.Ten days before the trial the parties sought permission, by consent, to serve witness statements in reply. I gave permission. The evidence served by MD5 was a second witness statement of Mr Clark. Three days before the trial MD5 filed an application to serve a third witness statement from Mr Clark. 37.Mr Penhallurick objected on the ground that the second and third witness statements consisted of disguised expert evidence. They did. At the CMC there had been no permission given to either party to file expert evidence. 38.Mr Clark’s second and third witness statements had been filed to offer an explanation of spreadsheets and printouts of executable computer files which made up the late disclosure by Mr Penhallurick to which I have already referred. This disclosure went to a central issue at the trial: whether Mr Penhallurick had written VFC software before he became an employee of MD5 in November 2006. My impression before the trial, when the admissibility of Mr Clark’s second and third witness statements was challenged, was that I had no prospect of properly understanding Mr Penhallurick’s late disclosure without some informed assistance and not just from Mr Penhallurick. I allowed MD5 to file Mr Clark’s second and third witness statements to provide an explanation. I did not give permission for them to be filed as expert reports, leaving the parties to argue whether Mr Clark’s new evidence was admissible and if so, what I should make of it once I had had the opportunity to see Mr Penhallurick’s documents and to hear what he and Mr Clark had to say about them. 39.In closing, counsel for MD5 submitted that Mr Penhallurick’s late filed documents contained too much confusion and inconsistency for me to place any weight on any of them. I agree. I found none of them of any assistance in resolving anything and the same goes for Mr Clark’s second and third witness statements. 40.This brings me to Mr Clark’s first witness statement. It addressed a different issue: whether a copy of the version 3 of the VFC software supplied by Mr Penhallurick to MD5 after the end of his employment had been altered by him to remove key functions and thereby to hinder its use by MD5 in further development work. Mr Clark concluded that it had. 41.Mr Clark’s opinion that this is what Mr Penhallurick had done was exactly that, an opinion. As I have said, there was no permission to serve expert evidence. Although no objection was taken to the filing of Mr Clark’s first witness statement, that lack of objection did not serve to convert the witness statement into an expert’s report. The evidence of what Mr Clark did by way of investigation of the copy of version 3 in issue and the fact that he drew the conclusion he did was admissible evidence of fact and I accept it. However it was not admissible as opinion evidence to support the contention that Mr Penhallurick made a copy of version 3 and then altered the software to make it non-functional. 42.None of the foregoing should be taken as any criticism of Mr Clark. He was an honest witness doing his best to help the court with the matters which MD5 had retained him to consider.