Case No. IP-2020-000081

22.Written and oral evidence was given by Mr Howard and Menno De Vree for the Claimants. During the relevant period Mr De Vree was head of the Claimants’ operations in Liverpool.23.Evidence for the Defendants was given by Mr Tumilty, Mr El Paraiso and Stephen Wakefield. Mr Wakefield is a director and employee of The Cheerful Lime Company, which specialises in website design. He gave evidence about the design of UEPM’s logo and its website.24.In my view Mr Tumilty, Mr El Paraiso and Mr Wakefield were doing their best honestly to recollect the facts as they remembered them. The Claimants’ counsel did not criticise their evidence and I think that she was fair in not doing so. Similarly, the Defendants’ counsel, rightly, did not criticise Mr De Vree to any significant degree. He was a good witness.25.However, in closing the Defendants’ counsel had something to say about Mr Howard’s evidence, suggesting that he was a deeply unreliable witness. Counsel had a number of points to support this submission but I need mention only the first; the remainder seemed to me to carry less force.26.Mr Howard signed the statement of truth in the pleadings filed on behalf of the Claimants and was by inference the source of the alleged facts set out in those pleadings. A key point in the evidence was what happened after Mr Howard became aware of UEPM’s Old Logo, specifically after the phone call of 27 March 2018 from Ms Caffery to Mr Tumilty. Counsel for the Defendants submitted that Mr Howard had, via the Claimants’ pleaded Reply and subsequent amendments to it, produced three successive accounts of what had happened, adjusting the facts to fit the Claimants’ case.27.Mr Howard’s first version of events, pleaded in the Claimants’ original Reply, was that on 27 March 2018 Mr Howard and Mr Tumilty met in a park in Greater Manchester called Princess Park. At this meeting Mr Tumilty was said to have represented to Mr Howard that UEPM:“… was not interested in competing with the Claimant for business, and in particular stated that they had no interest in acquiring the Claimant’s largest client at the time, [Elliot]. [Mr Tumilty] instead represented that [UEPM] was being set up purely to manage individual lets, which would not significantly impact on the Claimant’s business, as a block management service provider.”28.The Reply went on to plead that Mr Howard had said that the parties could co-exist provided that (i) UEPM ceased to use the Old Logo, (ii) UEPM no longer used “Urban Evolution” as a brand name and (iii) UEPM would manage properties and landlords in a different market area, separate from those that the Claimants were dealing with so that UEPM and the Claimants would not be in direct competition.29.The Reply continued: Mr Tumilty refused to agree that UEPM should stop using “Urban Evolution” as a trading name. Mr Howard did not unequivocally renounce his objection to the name. However:“For the purpose of attempting to maintain what had hitherto been a good relationship, and in reliance on [Mr Tumilty’s representation quoted above], [Mr Howard] agreed to co-exist on the basis that the [UEPM] and [Mr Tumilty] accepted the terms [(i) and (iii) as set out in the preceding paragraph].”30.In short, according to this first version of events, Mr Howard and Mr Tumilty agreed in Princess Park that (a) UEPM’s trading would not significantly impact the Claimant’s business since it would manage properties and landlords in a different market area, (b) UEPM would change the Old Logo and (c) the parties could co-exist on that basis, which would include UEPM’s use of the “Urban Evolution” trading name.31.The Reply was then amended. In the second version of events there had been no meeting in Princess Park. Instead there had been a phone conversation between Mr Howard and Mr Tumilty on 27 March 2018. Mr Tumilty had made the representation quoted above but, significantly, Mr Howard had not proposed conditions (i) to (iii) for the co-existence of the parties and of course Mr Tumilty had not responded to the proposals. Mr Howard had believed that the parties could co-exist on the basis of Mr Tumilty’s representations, but nothing had been agreed and in particular, nothing at all had been said about UEPM’s continued use of the “Urban Evolution” name.32.Mr Howard’s witness statement set out a third version which was incorporated into a draft Re-Amended Reply served shortly before the trial. This time the representation made by Mr Tumilty on 27 March 2018 had not been that UEPM was being set up purely to manage individual lets. Instead, Mr Tumilty had made the assertion that UEPM had been set up “… purely to do small block management, especially RTM (Right to Manage) companies with incumbent clients from LCR”33.The second part of this assertion was clarified by Mr Howard in cross-examination to mean that Mr Tumilty had assured Mr Howard that UEPM would only service LCR’s existing clients. This did not form any part of the accounts of events made before the re-amendment. As for the first part of the assertion, counsel for the Defendants suggested it had become necessary when Mr Howard realised that he would be forced to concede he was aware from 27 March 2017 that UEPM intended to trade in block management. So much was made apparent by an email of 27 March 2017 sent by Ms Caffery to Mr De Vree. It was submitted that Mr Howard had therefore sought to deal with this in his evidence and in the Re-Amended Reply by saying that Mr Tumilty had represented to him that UEPM would engage only in small block management – and only in respect of LCR’s existing clients. (In cross-examination Mr Howard accepted that he had known on 27 March 2018 that UEPM had been set up as a company to do block management.)34.As in the second version of events, in this third version nothing was agreed between Mr Howard and Mr Tumilty; Mr Howard is just stated to have believed that the Claimants could co-exist with UEPM on the basis of Mr Tumilty’s representations.35.In cross-examination Mr Howard spoke of a conversation with Ms Caffery on 27 March 2018. He said that they discussed the logo and agreed that it had to be changed. He then added, not that the conversation included any concern about the name Urban Evolution, but that he had further complained to Ms Caffery that UEPM had ripped off text from the Claimants’ website, a complaint that was not raised in the pleadings or elsewhere in the evidence.36.The credibility of the witnesses in this case was of some importance because much turns on what was said and when, and whether it amounted to consent by the Claimants to the use of the Urban Evolution name by UEPM. What was said includes unrecorded oral conversations.37.It is inevitable that a witness who is involved in the preparation of a trial will become increasingly aware of criteria created by law and of evidence emerging from the documents, either or both of which may be important to the outcome of the case. There is nothing wrong in that, but it may create a temptation, conscious or otherwise, for the witness to adjust his or her recollection of events so that the recollection becomes better suited to the case being run by one side.38.I do not accept the submission that Mr Howard was a deeply unreliable witness but I think that his evolving account of what happened on 27 March 2018 bears the hallmarks of his having given in to this temptation, at least to some degree.39.In deciding what happened I will be principally guided by the emails of the time. To the extent that there is a conflict of evidence regarding events not recorded in writing, I think that the evidence of Mr Tumilty and Mr El Paraiso is more likely to be reliable than that of Mr Howard.