THE RIHANNA CASE AND OPINION EVIDENCE IN WITNESS STATEMENTS: BEEN THERE, DONE THAT GOT THE TEE SHIRT

We should, perhaps, get used to celebrities dominating the law reports. After court fees are increased they will be the only people who will be able to afford litigation in any event.  The case of Robyn Rihanna Fenty -v- Arcadia Group Brands Limited [2015] EWCA Civ 3 is the headlines today. Less well publicised is the defendants’ strongest ground of appeal – that the judge was swayed by inadmissible opinion evidence.

THE CASE

The claimant, a “world famous pop star” brought an action against manufacturers and suppliers of clothing which carried her name. She was successful at trial in preventing the sale of the Tee shirts involved on the grounds that a substantial number of people would be deceived into thinking that this was an authorised product and buy in on that basis.

KEY POINTS

1. It is extremely dangerous to place opinion evidence in a witness statement.

2. Such evidence should be excluded.

3. The consideration of such “opinion” evidence is inappropriate.

4. In appropriate cases a judge’s reliance on “opinion” evidence could form the basis of a successful appeal.

THE JUDGMENT

The defendant’s appeal was dismissed.  However the Court of Appeal held that the strongest ground of appeal  related to the weakness of the evidence and, in particular, the judge appearing to take note of opinion evidence.

  1. That brings me to the final ground of appeal which is, in summary, that Rihanna’s case was never properly alleged in the pleadings or developed in the course of the proceedings, and that it was not supported by evidence of any probative value. In my judgment there is nothing in the first of these points. The statement of claim made clear that Rihanna contended that the image was unauthorised and had been taken whilst she was filming for one of her singles in Northern Ireland. This theme was developed in the statements of those witnesses who gave evidence on her behalf and then, in her opening written argument at trial, there appeared a full exposition of her contentions. She explained that that the image shows her dressed for her video for the single We Found Love from the Talk That Talk album; that the video shoot received lengthy press coverage, partly as a result of the complaints by the farmer upon whose land it was made; and that the image is recognisably her in that music video context.
  2. In my judgment the second point has more substance and it has been developed by Mr Hobbs in a number of ways. First, he refers to the objections taken before trial to the entirety of certain witness statements and to particular paragraphs in the witness statement of Mrs Perez on the basis that they consisted of or comprised expert evidence for which no permission had been obtained and which ought therefore to be excluded from consideration in accordance with the provisions of s.2(3) of the Civil Evidence Act 1972 and CPR Part 35.4. This objection was considered by the judge at the pre-trial hearing on 5 July 2013. In his judgment given on that day ([2013] EWHC 1945 (Ch); [2013] FSR 37) he dealt with admissibility and excluded one witness statement but otherwise rejected the objections. Other case management issues were left over until a further hearing on 9 July. Ultimately, the only evidence admitted into the case and arguably relied upon by the judge was that contained in the statement of Mrs Perez and, as to that, the judge said this in his judgment of 5 July:

“47. … Ms Perez is the main witness for the claimants. Most of it is not objected to. Some of Ms Perez’s evidence which is objected to is duplicative of what I have dealt with already. It relates to the licensing business in the music and fashion area. The high point of Ms Perez’s evidence on the question of whether it is expert evidence is paras. 81 to 83. Here effectively Ms Perez articulates the claimants’ case why the T-shirt in this case is said to create a misrepresentation that it is authorised and why the claimant is concerned about it. I think this is natural evidence for the claimant to give. It is not expert evidence. It is difficult to see how the case could be articulated otherwise.”

  1. In other words, the judge regarded the opinions expressed in paragraphs 81 to 83 as containing argument or, as he put it, an articulation of Rihanna’s case. Paragraph 83 is the most important and reads (with the parts to which objection was taken shown in italics):

“83. In my experience, the fact that the image that was used on the unauthorised t-shirt was taken on the occasion of a video shoot, and a well known one too, rather than when [Rihanna] was not working or at an event, means that fans are particularly likely to think that the image came from promotional material for that album, single or video. In this case the official booklet for the Talk That Talk alum contains professional images of Rihanna. Included in those images are shots from the We Found Love video shoot. They show Rihanna with the same hairstyle and headscarf that she was wearing in the shot used for the Topshop t-shirt … [Topshop’s] actions were therefore likely to lead fans to think the t-shirt was authorised, particularly as it was sold under the mark RIHANNA TANK …

  1. Then, on the first day of the trial, the judge gave another ruling in relation to Mrs Perez’s witness statement. So far as material, he explained that he would attach no weight to evidence on what he described as the ultimate issue which he had to decide but that the “substance” of paragraph 83 was relevant.
  2. The judge also dealt with paragraph 94 of the statement which reads in material part:

“94. … Arcadia’s unauthorised t-shirts bear an image of Ms Fenty in the distinctive clothing, hair and makeup of the authorised music video I have described above, thereby implying that this t-shirt is authorised and indeed part of that official authorised and approved promotion. Thus the sale of these shirts infringes her rights and is likely to deceive the fan and customer base. The typical potential shopper is likely to come from the younger age groups who listen to her music and perhaps follow her through social media. They may or may not be able to go to her concerts but they rely on the reputation of the place where they shop.”

  1. As to this, the judge ruled that the “first part” of this paragraph (by which I understand him to have been referring to the first two sentences) was argument and did not need to be cross-examined to. He considered that the second part was, however, relevant because it went to the circumstances of the trade. Mr Hobbs contends that Topshop was given to understand by this ruling that that it had no need to cross-examine Mrs Perez upon the assertions she had made in the first part of this paragraph and so did not do so.
  2. Mr Hobbs then focuses his attention on the judgment and draws particular attention to the judge’s findings and reasoning at paragraphs [67] to [69] which I have quoted above. Here, says Mr Hobbs, the judge has plainly accepted and relied upon the opinion of Mrs Perez and he has fallen into error in so doing for a whole series of reasons: he ought to have found that this evidence (along with all the other evidence the subject of the pre-trial objection) was expert evidence for which no permission had been sought or obtained and so he should have excluded it; he had ruled at the outset of the trial that this evidence was an expression of opinion on the ultimate issue and that he would place no reliance upon it and that there was no need for it to be cross-examined to, and yet he proceeded to do precisely that, indeed it was an essential foundation for his ultimate finding; and finally, Mrs Perez had no proper basis for expressing this opinion in any event.
  3. These are powerful submissions and it seems to me that they have particular force in relation to the last two sentences of paragraph [67] of the judgment which bear repetition at this point:

“Mrs Perez thought that her fans would be likely to think the image came from promotional material from the We Found Love video shoot. The fact that Mrs Perez did not know much about the UK high street does not mean she was unable to give that evidence.”

  1. Here I believe Mr Hobbs can fairly complain that, if nothing else, the judge has focused upon an expression of opinion by Mrs Perez having earlier ruled that it was argument and not something that needed to be cross-examined to. Nevertheless and despite the legitimacy of this particular complaint, I have come to the conclusion that the critical paragraphs of the judgment, that is to say [67] to [69], must be considered as a whole and that the real substance of them is clear. The judge found on the evidence, as I believe he was entitled to, that the image itself is striking because it is oversized and shows Rihanna’s face and shoulders; that Rihanna is looking straight at the camera with her hair tied above her head in a head scarf, in other words that she is in a pose; and that similar images had been used for the recent Talk That Talk album and associated video. It seems to me that, having come this far, the judge was also entitled to go on and make the finding that he did at paragraph [69], namely that the relationship between this image and the images for the album and video would be noticed by her fans. Indeed the nature of the image may be thought to have made it very likely indeed that it would be taken to be an authorised publicity shot for what was then her recent musical release. I am therefore entirely satisfied that, however inappropriate the inclusion in paragraph [67] of the reference to the opinion of Mrs Perez may have been, it had no effect upon the conclusion to which the judge came. In these circumstances it is not necessary and I do not believe it would be appropriate to embark upon a consideration of whether and to what extent evidence of trade practice, trade usage, consumer behaviour and consumer perception constitute expert evidence to which the provisions of s.2(3) of the Civil Evidence Act 1972 and CPR Part 35.4 apply.
  2. It follows that the judge was entitled to find that the sale by Topshop of the t-shirt amounted to passing off. I would therefore dismiss the main appeal and refuse permission to appeal against the judgment of 5 July 2013.

OPINION EVIDENCE

This passage highlights the dangers of a witness giving “opinion” evidence in a witness statement.  It further highlights how judges must be astute, if not determined, to expressly eliminate such evidence in their consideration of the case and the judgments.

There is, in fact, no need for evidence to be “opinion”. This was considered by Mr Justice Arnold in  Enterprise Holdings, Inc -v- Europcar Group UK Ltd [2015] EWHC 17 (Ch)

  1. Counsel for Enterprise described this evidence as “trade evidence”. I would prefer to reserve that label for evidence from witnesses in the relevant trade who are independent of the parties. Such witnesses are often retailers: they may be retailers of the claimant’s goods or the defendant’s goods or sometimes both. Such witnesses can give factual evidence as to the circumstances in which the relevant goods are sold, the characteristics of the consumers who purchase them and any instances of apparent confusion the witnesses (or their staff) have experienced. There is a controversial and difficult question as to whether such witnesses can go further and express opinions as to the likely reactions of customers to a particular sign, which involves consideration both of whether such evidence is expert evidence subject to CPR Part 35 and whether, even if it is not expert evidence, it can properly be admitted or given any weight in cases involving ordinary consumer goods and services: see the judgment of Birss J in Fenty v Arcadia Group Brands Ltd [2013] EWHC 1945 (Ch), [2013] FSR 37, an appeal from which has been argued before the Court of Appeal but not yet determined.

TO WHAT EXTENT CAN WITNESSES GIVE OPINION EVIDENCE?

The Fenty case has not determined this issue. However, to repeat the points made above, it is clear that:

1. It is extremely dangerous to place opinion evidence in a witness statement.

2. Such evidence should be excluded.

3. The consideration of such “opinion” evidence is inappropriate.

4. In appropriate cases a judge’s reliance on “opinion” evidence could form the basis of a successful appeal.

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