Case No. EWHC-1798-(IPEC)

[2007] EWHC 758 (Ch) at [3] setting out a non-exhaustive list of indicators of unsatisfactory witness evidence that can assist in assessing oral testimony. These were summarised by HHJ Williams as:(i)evasive and argumentative answers;(ii)tangential speeches avoiding the questions;(iii)blaming legal advisers for documentation (statements of case and witness statements);(iv)disclosure and evidence shortcomings;(v)self-contradiction;(vi)internal inconsistency;(vii)shifting case;(viii)new evidence; and(ix)selective disclosure.46.I have borne all of those indicators in mind when listening to the oral testimony and subsequently reviewing my note of cross-examination. I have also reminded myself that, as highlighted in Credit Suisse, a witness may have a conviction as to the truth of a particular fact, which is found to be incorrect or probably incorrect when other evidence is examined. A witness whose evidence is found to have been unreliable or not convincing on one issue is not necessarily to be regarded as unreliable on other issues. There may, however, be some issues where the only conclusion that can be drawn is that the witness is consistently unreliable or even deliberately untruthful. Such instances will inevitably taint the Court’s perception as to the overall reliability of that witness.47.In the light of those comments, I turn first to the Claimants’ witnesses. Mr Williams gave evidence on behalf of the Claimants on all issues. Mr Williams answered the questions put to him accurately, occasionally almost to the point of pedantry. His oral evidence was largely consistent with his written evidence. The fact that (in common with all the witnesses) many of the events about which he was asked took place 20 years ago or more meant that his evidence was occasionally tentative as, for example, when asked about the advice given to the band members to involve their wives in the 1976 Company. There were also inconsistencies in his evidence as to the time at which various discussions took place during the spring and summer of 2018, suggesting that some of the effects of preparing for trial identified in Credit Suisse were at work.48.Some aspects of Mr Williams’ written evidence had an element of hyperbole and the evidence overall suggests that his account of his role in some of the early activities of the Rubettes was somewhat exaggerated. On some issues (for example as to the quantum of the sum owing to the accountants in 1994, and as to the payment of that sum) he was unable to provide documentary support, while having detailed written records of other matters, and I have borne that in mind when considering his evidence on the alleged agreements entered into in 1994, not least because of the time that has passed since those agreements were allegedly concluded. Having said that, many of the most important aspects of Mr Williams’ evidence were not challenged. Overall I found him to be a credible witness but have sought to test and check his evidence (where the evidence is relevant) against other material where that is possible.49.The Claimants also relied on the evidence of Mr Nicholas Kanaar. Mr Kanaar is a solicitor who acted in relation to a recording contract with Polydor Records in the 1970s. His written evidence explained how he received his instructions in respect of that agreement and provided some tangential information about agreements concluded in 1994 dealing with the assets of the 1976 Company. Mr Kanaar was briefly cross-examined on his recollection of events at a meeting held at his firm’s office between Mr Williams and Mr Clarke around that time. Mr Kanaar’s evidence was limited in scope, and largely unchallenged. He answered the questions put to him during cross-examination succinctly, in line with his written evidence. Where he could not remember something, he said so clearly. He was a credible witness and clearly wished to assist the Court.50.Mr Clarke was the first of the Defendants to give evidence. On the whole, he answered the questions put to him clearly, from his own perspective. He had occasional difficulty in following questions from Mr Smith, where those questions were lengthy or couched in the negative. In addition, he appeared to have some difficulty in hearing Mr Smith. He described himself as a man who was interested in common sense and not in lawyers’ jargon and this was very apparent in his recollection of some issues.51.Mr Clarke was affected by the same difficulties of recollection as all the witnesses in respect of events which happened a long time ago. I consider that some of Mr Clarke’s recollections of events may have been affected by the process of litigation. The agreements allegedly concluded in 1994 are one instance of that concern and, in assessing the evidence on that particular issue, it was particularly important to have regard to the conduct of the parties and any other available evidence in assessing the probabilities of what happened.52.While not generally argumentative or evasive, Mr Clarke’s views on some aspects of the case led to his evidence being given from his particular perspective, at a tangent to the question posed by counsel and with a degree of truculence or misplaced levity. This affects the weight to be given to some of his oral evidence.53.One example will suffice. It relates to Mr Clarke’s response to questions about Mr Williams’ pre-2018 journeys to and from Australia to perform. This was relevant to Mr Clarke’s explanation of his understanding of Mr Williams’ intentions toward the band once he announced his move to live permanently in Australia. Mr Clarke gave evidence that he thought that that Mr Williams was abandoning the Rubettes and that this move would mean that the Rubettes could continue without Mr Williams. My note of the evidence is that Mr Clarke said that he had concluded that the band could continue to be booked without Mr Williams and to perform as ‘the Rubettes’ as Mr Williams could not be involved once he was living in Australia. Counsel asked Mr Clarke to comment on the fact that Mr Williams had come back and forth from Australia ever since 2014. Mr Clarke’s comment was only that perhaps Mr Williams may have too much money.54.On one or two occasions, Mr Clarke’s evidence was not credible as, for example, when responding to questions about the establishment of various social media accounts which used the name ‘the Rubettes’ without qualification and referred to the trade mark he had registered for ‘the Rubettes’. Mr Clarke initially attempted to deflect questions about responsibility for those sites or for their use of the trade marks remarking “I’m not up to speed with protocol”. When counsel noted that the same person had been involved in setting up both accounts for which Mr Clarke accepted responsibility and those for which he did not, Mr Clarke did not address the issue other than by enquiring whether it was “against the law” for the same person to be involved in setting up social media accounts on two or three separate platforms. Such argumentativeness can be an indicator of unreliable evidence. Mr Clarke ultimately accepted that at least some of those accounts had been set up for him, but his evidence as to his knowledge and involvement was not clear and I place limited reliance on it.55.Mr Clarke’s evidence about his understanding of Mr Williams’ intentions in 2018 was in my view affected by his personal stake in the events in question and by hindsight. His oral evidence that he thought that the band would be coming to an end and that Mr Williams had gone to Australia to retire does not sit well with the undisputed evidence that Mr Williams had in the past returned from Australia to perform in gigs. Mr Clarke’s evidence about his understanding of the wording in the 1 July email was not an obvious reading based on the text which mentioned only that the current line-up was being disbanded and that Mr Clarke’s services would no longer be required. The reading put forward by Mr Clarke is at odds with the overall context and is not corroborated by the evidence given by others, as considered in more detail below.56.Mr Clarke gave new evidence under cross-examination and on occasion sought to deflect criticism for matters such as inadequate disclosure towards his advisers. For example, when asked about correspondence with venues and promoters relating to potential trade mark proceedings, he said that he could not remember whether any such material had been disclosed.57.During cross-examination, Mr Clarke gave evidence that his real concern with Mr Williams’ activities was with the use of a picture containing an image involving Mr Clarke and that the reference to the UK TM may have been “an error”. The correspondence is signed by Mr Clarke personally and refers to trade mark infringement only. Mr Clarke and the other Defendants may have had a concern about possible use of their images by the Claimants, but his attempt during oral evidence to conflate that issue with his authorisation of correspondence relating only to trademarks leads me to regard his evidence on trademark issues as lacking credibility. 58.As has frequently been observed in the authorities, giving new evidence under cross-examination and failures in disclosure can be an indication of unsatisfactory witness evidence and means that a degree of caution is sensible when approaching the affected evidence. For the reasons given above, Mr Clarke’s evidence was in several respects unsatisfactory. Where this is relevant to my decision, it is referred to specifically below.59.Mr Richardson also gave evidence in person. As with Mr Clarke, it was apparent that he found the process of cross-examination intrusive. In my view, he sought to answer the questions put to him honestly. His recollection of many of the events in issue was, however, limited or non-existent and the evidence must be approached with that in mind.60.During a good deal of the relevant period, Mr Richardson was not taking any interest in the affairs of the band. I therefore treat with some caution the rather detailed evidence he gave under cross-examination that Mr Williams’ suggestion that he should sign the 1994 Agreement was a “plot to take over the world” about which he had complained at the time. This is also at odds with his written evidence that “I believed at the time that I was simply removing myself from a company that was no longer appropriate to being [sic] connected to”. In my view, this may be an instance of hindsight and of the process of civil litigation and colouring oral testimony and leading to new evidence during cross-examination. This does not mean that Mr Richardson was overall an unsatisfactory witness, but some of his evidence must be approached with caution.61.Mr Richardson’s evidence was unsatisfactory in one particular respect. This related to his withdrawal from his relationship with Mr Williams and his decision to support Mr Clarke’s alternative line up. Mr Smith submitted that Mr Richardson had clearly come to Court intending to attack Mr Williams’ integrity. I do not agree. While some of Mr Richardson’s oral evidence had not been included in his written evidence, I do not conclude that Mr Richardson had an agenda to smear Mr Williams. I did, however, reach the view that Mr Richardson’s evidence on this point was affected by his personal feelings about Mr Williams and that I should approach Mr Richardson’s evidence on this issue with some care if not already contained in a written statement, or supported by contemporaneous documents. I do not consider this to undermine Mr Richardson’s overall credibility, and much of what was said during that passage of his cross-examination was not directly relevant to the main issues.62.Finally, Mr Etherington briefly gave evidence by video link. As he had not been involved with the Rubettes before 2016 other than spasmodically, his evidence was relevant to only a few of the issues in the case. On most issues, he answered the questions put to him briefly, although on occasions he was argumentative and clearly found the process rather tedious.63.During cross-examination, Mr Etherington mentioned allegations about Mr Williams’ historic behaviour which had played no previous part in his evidence. Mr Smith submitted that this showed an intent to smear Mr Williams with unjustifiable allegations which tainted Mr Etherington’s evidence as a whole. I do not agree, but have disregarded the allegations made which were not in Mr Etherington’s written evidence or in the documents. If these were to be relied on, they should have been included in the evidence in chief when they could be put to Mr Williams.