[2025] EWHC 1954 (IPEC)

For the Claimant and Third Party, I heard oral evidence from Mr Lant and from Mr Michael Leonard, the chairman and a director of Razmataz. For the Defendants, I heard oral evidence from Mr Bray, Mr Dunn, Mr Stephen Ash, who was a friend of Mr Bray’s from 1977 and was involved in the early years of the band, and Mr Stephen Beatty, a director of the First Defendant.

Mr Beatty claimed in his witness statement to have direct knowledge of the authorship of some of the disputed works but readily accepted in cross-examination that this was not the case. His views were based on information given to him from Mr Bray. His evidence was therefore irrelevant to most of the points I have to decide. Mr Leonard’s evidence, which I accept, was also of marginal relevance.

Mr Lant, Mr Bray, Mr Dunn, and Mr Ash were trying to give evidence of events which occurred between about 1978 and the mid-1980s, over 40 years ago. There was little by way of contemporaneous documentation to help the witnesses, and unfortunately the documents which have survived are mostly undated, and the photographs are blurry. Although Mr Lant produced a range of sketches and drawings, they are undated and some of them are partially obscured by the copyright notices he stamped over them. The authenticity of the documents was not challenged prior to the trial. The Defendants’ case lacked contemporaneous supporting evidence.

The difficulties for a judge in such circumstances were considered by Ms Pat Treacy, sitting as a Deputy High Court Judge, in Alan Williams Entertainments Ltd v Clarke [2022] EWHC 1798 (IPEC); [2022] E.T.M.R. 50, and I have borne the slightly shortened points below in mind in this case:

“40 My starting point is the Judgment of Leggatt J (as he then was) in Gestmin v Credit Suisse [2013] EWHC 3560 (Comm) (‘Credit Suisse’), from [19]. … the best approach in the trial of a commercial case is to base factual findings on inferences drawn from the documentary evidence and known or probable facts. The value of oral testimony is ideally “to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness.”

41 In a case such as this, where almost all the witnesses are personally involved … Leggatt J’s observations in Credit Suisse on the fallibilities of human memory and the distorting effect of the litigation process are particularly important:

“The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.” [19] and [20]

42 …

43 The difficulties of assessing the witness evidence are compounded by the uneven documentary record. … The Defendants’ case, in particular, relies principally on oral evidence with a lack of contemporaneous supporting documentation. As a result, while some factual findings can be made by reference to the contemporaneous documents, it has been necessary to assess the reliability of the witness evidence also by reference to other considerations.

44 The relatively recent Judgment of HHJ Richard Williams, sitting in the Business

and Property Courts in Birmingham, in Singh v Jhutti [2021] EWHC 2272 (Ch) contains a summary of relevant considerations when assessing evidence of events which took place over an extended period of time, in respect of at least some of which there is limited or disputed documentary evidence, and where the oral evidence is largely given by witnesses closely related to the dispute. Many of the difficulties in Singh v Jhutti also arose in this case. For example, as mentioned above, the oral evidence was, … given by witnesses closely connected to the dispute and therefore likely to be subject to, in the words of HHJ Williams “… significant motivating forces and powerful biases…” [59b].

45 Facing a similar situation, HHJ Williams referred to the Judgment of Lewison J (as he then was) in Painter v Hutchison [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:

…

(v)

self-contradiction;

(vi)

internal inconsistency;

(vii)

shifting case;

(viii)

new evidence; …

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.”

It was not suggested in this case that any of the witnesses had been less than truthful, nor that Mr Dunn and Mr Ash were supporting Mr Bray out of loyalty or friendship rather than giving their own evidence. On the whole, I consider that all of these witnesses were genuinely doing their best to recall matters from their teenage years, many of which took on greater significance in this trial than I think they would have had at the time. Whilst I am satisfied that they were giving what they honestly believed they remembered of those events, it is of course easy to be mistaken as to what is genuine memory and what is supposition or reconstruction, or possibly, wishful thinking. That was amply demonstrated by the changes which were made in chief to important dates in Mr Bray’s and Mr Dunn’s witness statements and by some of the contradictions in the evidence of all three ex-band members. I did not consider that any of them were seeking to mislead the Court. However, there is some justification for Mr Howells’ suggestion that some of Mr Bray’s less compelling evidence was no more than wishful thinking. In addition, I formed the view that some of his recollections may have been affected by the process of litigation. That applied with particular force to his changing evidence about the authorship of the Photographs. He was rather unwilling to accept that his memory could be at fault despite the passage of time, even when faced with apparently contradictory documentary evidence. Mr Lant and Mr Dunn were far more open to the possibility that their recollections were not exact. I deal with these points further below. I therefore think it right to treat all of the witness statements and oral evidence with caution, save as supported by the documents before me.