Claim No: IP-2022-000066 - [2024] EWHC 1369 (IPEC)

The Claimant relies on the evidence of Shan Selvendran, its managing director (“SS”). He gave a witness statement dated 13 February 2024, signed the Re-re-amended Particulars of Claim, Re-amended Reply and Re-amended Defence to Re-amended Counterclaim (which stand as evidence in IPEC) and also signed the Claimant’s responses to the Defendants’ Part 18 request of 5 March 2020. He attended court and was cross-examined.

I found SS to be a good witness. Ms Watkinson for the Defendants accepted in closing that he came across as honest and truthful who did his best to answer questions which were put to him as fully and clearly as he could, and she does not make any criticisms of him. I found him to be a thoughtful, careful witness and I am satisfied he is both credible and reliable. Unless I state otherwise, I accept his evidence.

The only witness for the Defendants at trial was KK. He gave a witness statement dated 13 February 2024, signed the Re-amended Defence and Counterclaim, attended court and was cross-examined and re-examined. The Franchisee Defendants all signed the Re-amended Defence and Counterclaim (which stand as evidence in IPEC) but none filed witness statements or participated in the trial. The Claimant has invited the Court to draw an adverse inference from the fact that none of the Franchisee Defendants chose to attend trial to give evidence in their defence. The Defendants submit that, as KK has stated in evidence, he has spoken to each of them and agreed that since he is the franchisor, there is no additional evidence that can be given by them to assist the court in determining this claim over and above what KK can give and disclose. I do not draw an adverse inference in these circumstances. The Franchisee Defendants have been operating their franchises with KK, and if they choose not to provide evidence in their defence, and rely on him, that is their prerogative.

There were a number of difficulties with KK as a witness. The first was that although he gave his witness statement in perfectly fluent English, his English was very poor. I was told that he indicated to his solicitors that he would prefer to give oral evidence at trial through an interpreter as it would help him in understanding and answering questions, and they made a request of the Claimant for their consent to him bringing an interpreter. Firstly, as I indicated in open Court, I do not know on what basis they sought the Claimant’s approval. The Defendants could not provide me with any rule of the Court requiring consent to be sought and given by another party. I am satisfied that is because there isn’t one. It was for KK to organise and arrange for an interpreter at Court if he felt more comfortable giving his evidence in that manner. Second, the Claimant refused to give its unnecessary consent, on the basis, I was told, that KK fully understands English, is capable enough of running a business where he deals with suppliers, landlords and others in English, and besides, the unnecessary request for consent should have been made, in the Claimant’s solicitor’s view, earlier. Thus the Claimant compounded the Defendants’ mistake. It was not for the Claimant to judge whether KK should or should not have the benefit of an interpreter. Third, the Defendants accepted this refusal, and attended Court without an interpreter. I expressed concern about his ability to fully participate in the trial, and said if that was a problem, it was one which would affect if the trial could go ahead, but was told by Ms Watkinson that KK did give instructions to his solicitors in English and was comfortable to give evidence in English, but would have been more comfortable with an interpreter as his English was slightly broken. I asked her to double-check that with her client, which she did, and said he was happy to proceed on that basis.

We then heard from the Claimant’s witness.

When KK entered the witness box, it became apparent that his English was not good. However, as the cross-examination progressed, I felt that he was able to understand and answer the questions, with some assistance of repeated questioning and simplified language. The greater problem appeared to be that KK did not want to listen to the questions, but wanted to make speeches and repeat his talking points. On a very many occasions, he would talk over Mr Pearson before he could finish his question, despite repeatedly being reminded by the Court that he must wait for the question and listen to the question before answering. He often would not answer questions until I had asked them. Ms Watkinson submits this was because I clarified and simplified them so they were understandable, and although that may have been true on some occasions, on others it appeared to be because he treated me with a little more respect than Mr Pearson and was less prepared to talk over me or deliberately avoid answering my questions. KK was unwilling to make obvious concessions, refusing to admit, for example, that two identical photos of burgers were in fact identical; or stating that two near identical letter “M”s, or two near identical brick walls with white grouting, were “totally different”; or even denying that his Sign 1 contained the word “Taste” or “three dots” (an ellipse). I am satisfied this did not result from any failure to understand what he was being asked. I found KK evasive when being asked questions he did not want to answer, for example about the similarity in get-up between his stores and those of the Claimant. I have thought carefully about whether this was instead an issue of understanding, and scrutinised the transcript and my notes, but that only accounts for a small part of it in my judgment. He was absolutely adamant about evidence that he later had to retract when faced with photographic evidence it was wrong (relating to the chronology of his opening of Metro’s shops) which I consider was an attempt to mislead the Court. He gave some evidence about his negotiation of the 2018 Agreement with SS which I am satisfied on the balance of probabilities, for reasons I give later in this judgment, was untruthful. He was inconsistent in evidence he gave about how many franchisees, Metro’s stores and staff he had, providing what I consider to be changeable and exaggerated evidence. Mr Pearson in closing made similar criticisms of KK, but these are my own impressions. He did remind me that KK changed his evidence about the number of people employed across his franchise from 500 to 100 within the same sentence. Ms Watkinson accepts KK had difficulties in giving his evidence and described him as “emotionally involved” in the proceedings, saying he considered it to be a real injustice that they had been brought at all, but she submits he was honest and truthful and gave oral evidence which was consistent with his written evidence. I regret that I do not agree. There were significant inconsistencies and contradictions, and I found him to be unreliable and, on some occasions, lacking in credibility or actually untruthful. The Defendants have produced a table of times when they say that KK was pressed by Mr Pearson on questions that he had already given a clear answer to, which was handed up in closing submissions, but I do not recall any objections being made at the time, and it was often necessary for Mr Pearson to ask KK a question a number of times to ensure that it had been understood and properly answered, as evidenced by the fact that his evidence did change and clarify in his responses on occasion. I treat KK’s evidence with a great deal of caution and where his evidence conflicts with that of SS, in the absence of other credible corroborating evidence, I prefer the evidence of SS.