Lies have a way of unravelling. In politics, personal lives and business dealings the exposure of one lie will often lead to exposure of others, and serious consequences will usually follow. Those consequences can include damage to career, loss of reputation, damage to personal relationships and in some cases prison.
The truth is especially important to the justice system as judicial decisions are based on the facts of the particular case, so the courts need to have effective sanctions where a witness deliberately tries to game the system. One recent English case demonstrates just how nightmarish it can be if a witness lies in court and is found out.
Utopia Tableware Ltd v BBP Marketing Ltd
The case of Utopia Tableware Ltd v BBP Marketing Ltd & Anor [2013] EWPCC 28 involves claims of infringement of intellectual property rights in relation to beer glasses. In particular, the claim was based on passing off and infringement of registered and unregistered design rights, and the claimant sought an interim injunction to prevent the sale of the defendants’ glasses.
The initial hearing
The interim injunction application had an initial hearing in December 2012. The claimant focused mainly on the passing off claim because the damage to goodwill under that cause of action would be difficult to quantify, this suggesting that the balance of convenience would favour granting the interim injunction.
The claimant relied on emails which showed that its customers were raising unsolicited concerns about the defendants’ beer glass products, saying that they thought the glasses were a direct copy of the claimant’s product. Such evidence of actual confusion is not essential, but where it is available it is usually very convincing. The design right issues could be dealt with by considering the product which was said to infringe.
Following the initial hearing the Patents County Court granted an interim injunction to stop sales of the defendants’ beer glasses through until 21 January 2013, which was the date set for a further hearing to incorporate additional evidence which the defendants wanted to file.
At the first hearing the defendants had raised concerns about whether the emails relied upon by the claimant were truly unsolicited. As the Judge noted later, the issue of whether or not the emails were truly unsolicited was relevant to the passing off claim because if they had been solicited “it would fatally undermine the claimant’s reliance on them to support a case of passing off”.
By the time of the second hearing, the defendants were challenging whether the emails were genuine at all. This was based on the timing of the emails, as summarised in the judgment:
“The defendant’s evidence is that they chose the name Aspire for their product on 1 October – the precise date does not matter, but the significance is that the name was chosen shortly before, but only by a matter of a few hours or possibly a day before, these emails were sent. Crucially the emails were sent before the name was given out outside the company. The defendant has also given evidence that although the design for the Aspire was chosen some months earlier, no commercial products made to the design were released into the market until after the date of these emails. So the essential point the defendant makes on the evidence is that these emails cannot be genuine, because they refer to the “Aspire” and comment on its similarity to the Aspen, using the name Aspire, and the distributors in question could not possibly have known what the design was like or that it was called the Aspire.”
At the second hearing, and in the face of the defendants’ evidence, the claimant maintained that the emails were genuine and filed further witness statements which sought to explain the issue. Its witnesses suggested that the explanation for the dates was that employees of the defendants had leaked information into the marketplace. In addition, however, the claimant elected not to rely upon the emails or the passing off cause of action for the purposes of the second hearing.
The Judge was unable to resolve the factual dispute regarding the authenticity of the emails in the interim injunction hearing:
“The question is whether it is fair or there is a reasonable probability that what Mr Dodd says is right on the basis of the material before me. In my judgment, it would, despite Mr Onslow’s submission, be to conduct a mini trial of this material if I was to resolve what is going on, and I do not accept that this evidence before me renders it incredible that these emails were genuine. I am simply not in a position to resolve who is right about these emails.”
In light of the limitations of the interim injunction hearing, the Judge found that the status quo should remain in place and ordered that the injunction should continue until the full hearing in September 2013.
After the second hearing
Shortly after the second hearing the claimant’s house of cards started to collapse.
The defendants had seized on the email issue and wanted to approach the other parties to the emails. In response the claimant sought to drop the passing off claim from the proceeding altogether and to prevent the defendants from contacting the distributors who had purportedly sent the emails. It also brought an application asking the Court to direct that the authenticity of the emails was not in issue. The Judge refused to decide the point at that stage and the defendants pursued the matter with the distributors.
Finally, in April, the claimant came clean about the emails. It transpired that the claimant’s director and sales director had called the distributors and asked them to send the emails, indicating what they wanted them to say. In addition, the dates of the emails were changed to suit the claimant’s case. This was obviously completely at odds with what they had said in the witness statements filed with the Court previously.
Referral for contempt
The defendants filed an application inviting the Court to refer the matter to the Attorney General with a request that the Attorney General consider whether to bring proceedings for contempt of court.
Counsel for the claimant argued that the contempt could be dealt with adequately within the trial process by public censure and a financial penalty in the form of an appropriate costs award. He argued that the contempt was not as serious as it could have been, that it didn’t affect the outcome of the interim injunctions, and that the offending witnesses had confessed voluntarily.
The Judge, however, was not prepared to be lenient:
“I reject the submission that the admitted contempts were not serious. Signing false witness statements, repeating the lie in further false statements, conspiring to present false evidence and tampering with the dates of emails amount to a serious contempt.”
The matter has been referred to the Attorney General. Accordingly, the claimant is now facing possible criminal proceedings for contempt of court, as well as the trial in September on the merits of the design case.
Comment
Disastrous outcome for claimant
What looked like a strong case for the claimant has now descended into complete chaos. By seeking to bolster its evidence with faked emails the claimant has completely lost any moral high ground it may once have enjoyed over the alleged copycat. In all likelihood it will need to deal with two separate sets of proceedings, neither of which are now appealing, and one of which carries a distinct risk of criminal sanctions. Its directors will never be believed in court again.
No doubt relations between the claimant and its counsel and solicitors are also somewhat strained. It would be unsurprising if the design proceedings settle before trial – the claimant is likely to have lost at least some of its previous appetite for litigation, faces a significant costs exposure and will wish to avoid a further public re-hashing of its own criminal wrongdoing.
Less formal court no excuse
The Judge is to be commended for sticking to his guns and resisting the claimant’s attempts to sweep the matter under the carpet. Also of note is the fact that the Judge (who has now been appointed to the High Court) made no allowances for the fact that the contempt arose in the context of a relatively small case in the Patents County Court:
“Mr Onslow submitted that there may be a misconceived temptation, engendered by the comparative informality of proceedings before the Patents County Court, to file evidence which does not tell the whole truth, perhaps bolstered by the knowledge that cross-examination in the Patents County Court is limited… If Mr Onslow is right, then the Attorney General may reasonably believe that it is a temptation which needs to be dispelled in a public forum.”
Testing your own client’s evidence
Sometimes as lawyers we might have misgivings about the stories we are told by clients or other witnesses. This uncomfortable feeling can arise because their narratives seem to change over time or under close questioning, or because they do not seem entirely consistent with the documentary evidence. Although witnesses may have genuinely different recollections of events from the past, particularly after time has been spent in the trenches of litigation, it is important to get to the bottom of inconsistencies at an early stage.
One of the key roles of counsel is to advise on how material will present to the Court. This involves a mix of logic (about whether a proposition makes sense) and emotional intelligence (about how people would normally tend to react to a particular situation and whether an explanation sounds plausible). If a witness’s recollection needs to be challenged this can be framed in a neutral way by explaining that the Court may need further explanation about how or why events developed as the witness suggests.
The Utopia Tableware case shows how false evidence can backfire on a party and a witness, but there are consequences for legal advisers too. Apart from our ethical duties to the Court, there is also an inevitable reputational impact in these sorts of cases, however unfair that might be. The best way of minimising this risk is to allow plenty of time for briefing, so that there is time to reflect on any inconsistencies, and to insist on meeting witnesses in person before evidence statements are finalised. Even these steps cannot prevent a determined witness from duping his or her lawyer, but they do at least reduce the chances of false evidence being presented to the court, and enable an advocate to present the material confidently and in clear conscience.
Update – February 2014
I have published a new post about developments on this case since June 2013, including the substantive decision and the contempt convictions. Click here for more details.