“TOUCH SENSITIVE” WITNESS STATEMENTS AND OTHER FORMS OF EVIDENCE: WHEN THE CLAIMANTS COLLECT THE EVIDENCE THEMSELVES

The decision of Recorder Amanda Michaels (sitting as a Deputy Enterprise Judge) in Minder Music Ltd -v- Sharples [2015] EWHC 1454 (IPEC) raises some interesting issues in relation to witness statements and evidence. In particular the problems when a party to the action is responsible for taking the witness statements.

THE CASE

The action concerned the rights to a song “Touch Sensitive”  recorded by a band “The Fall”. The author of the song had assigned his rights to the song. The defendant was the producer of the album version. The question was whether the defendant had any copyright in the song.

THE WITNESS EVIDENCE

Issues arose in circumstances where counsel for one of the claimants was instructed under the Direct Access scheme, but the claimants had been responsible for obtaining the witness statements.  This is likely to be an increasingly common feature of litigation in years to come.

“The evidence

  1. I heard the evidence of a number of witnesses on behalf of the Claimants.

Mr Smith:

Mr Smith made three witness statements and was cross-examined at some length.

Mr Burgess, on behalf of Mr Sharples, suggested that I should attach little weight to Mr Smith’s evidence because it had been drafted for him by Mr Fogarty, the director of Minder Music. Mr Fogarty had run the proceedings on the company’s behalf without the benefit of solicitors and with only intermittent help from counsel, who was instructed directly by Minder Music. In an e-mail of 5 December 2004, Ms Adamson said to Mr Fogarty that she recalled him stating that Mr Smith “would sign anything.” Mr Burgess suggested that this indicated that Mr Smith’s witness statement was not reliable evidence. However, I do not think much reliance can be placed upon that throwaway remark made by Ms Adamson in the course of some rather acrimonious correspondence with Mr Fogarty.

Mr Burgess also submitted that Mr Fogarty’s approach to producing witness statements had been shown to be unreliable because he had drafted a witness statement which Mr McMahon had refused to sign and Mr McMahon subsequently produced a rather different statement on behalf of Mr Sharples. I do not accept that Mr McMahon’s refusal to sign the draft exhibited by Mr Fogarty reflects badly on Mr Fogarty, as the draft was produced by Minder Music’s Californian attorney, not by Mr Fogarty himself.

Mr Smith stated in his oral evidence that Mr Fogarty wrote down what he (Mr Smith) told him. I see no reason not to believe that evidence. In the circumstances, I do not accept that I should treat Mr Smith’s witness statement with any particular care because it was drafted by Mr Fogarty rather than by a solicitor.

I found Mr Smith to be a truthful witness, who was frank about the vagueness of his recollection of some of the events from the relevant period in 1998 to 1999 but was otherwise clear about certain fundamental matters which I discuss below.

Ms Adamson:

Ms Adamson made four witness statements and was also cross-examined at some length.

Mr Burgess again expressed some concern that her witness statements had been drafted for her by Mr Fogarty. In particular, the Defendant raised concerns that Ms Adamson stated in her witness statements that Mr Sharples had not made any contribution to writing the Song, but had accepted in correspondence relating to the Settlement Agreement (and again in the witness box) that he had added string parts to the music of the Album Version. In my view, that apparent inconsistency did not suggest that Ms Adamson’s witness statements were untruthful, but instead reflected her view (broadly shared by Mr Smith) that “the Song” was really the Original Song, and later versions were no more than arrangements of it, not separate copyright works.

The Defendant also pointed to differences between Ms Adamson’s 2nd witness statement and her 3rd and 4th witness statements as to the circumstances in which she entered into the Settlement Agreement. In my view, those later witness statements significantly expanded on or emphasised her initial allegation that she had been ‘unfairly pressurised’ into signing the Agreement and were put in higher terms than her oral evidence. In the circumstances, and in the light of the contemporaneous correspondence, I consider that her evidence in relation to the Settlement Agreement must be treated with some care, and I discuss the reliability of that evidence further below.

John Lennard:

Mr Lennard was the director of Artful Records and involved in the recording of the Album in 1999. His witness statement was served in reply shortly before trial and I gave permission for Minder Music to rely upon it in order to respond to the witness statement of Mr McMahon which I mention below. Mr Lennard appeared to be a reluctant witness; he gave his evidence in an off-hand manner which did not inspire confidence. On the other hand, when it was suggested to him that Mr Fogarty had drafted his witness statement, he was adamant that it accurately represented his recollections as relayed to Mr Fogarty, and I accept that his evidence was truthful.

Mr Fogarty:

Lastly, Mr Fogarty gave evidence on behalf of his company. He had no direct involvement with any of the relevant facts from 1998/1999 and his evidence was therefore of limited relevance to the issues before me. He produced a short witness statement shortly before the trial, relating to Mr McMahon’s witness statement and the unapproved draft mentioned above, and Mr McMahon’s unavailability to give evidence. He was cross-examined about this, but it does not seem to me that this reflected badly upon his credibility.

No further witnesses were called on behalf of Ms Adamson.

  1. Mr Sharples provided a lengthy and detailed witness statement. He too was cross-examined at some length. I did not find Mr Sharples a very satisfactory witness. He was not just defensive when asked questions about how successful he had been as a composer, but distinctly evasive. Furthermore, on some points his oral evidence did not match the evidence in his witness statement. For example, in his witness statement he suggested that the Canalot Agreement and further terms of his production agreement had been agreed by Mr Lennard and Mr Smith but in cross-examination he went further, claiming that Mr McMahon had checked the position as to the Canalot Agreement with the rest of the Band and “everybody” agreed. More significantly, it appeared to me that he was quite unable to explain in the witness box a number of significant points in his witness statement. In particular, although he had described in detail in his witness statement the sort of changes he claimed to have made to the song lyrics, he was unable to identify any of those changes in his oral evidence. I deal further with these points when discussing Mr Sharples’ claim to joint authorship of the Album Version. As I explain below, it also seems to me that in a number of respects Mr Sharples’ evidence was contradicted by the contemporaneous documents. I do not believe that Mr Sharples was seeking to mislead the Court, but it appeared to me from his demeanour and from the nature of the points which he made that he had convinced himself of the reliability of his recollections about the Canalot Agreement and his input to the creation of the Album Version, when those recollections were at best hazy and at worst mistaken.
  2. The only other witness on behalf of Mr Sharples was Mr McMahon. He provided a witness statement but did not attend for cross-examination. A Civil Evidence Act notice was served in relation to his evidence, on the basis that Mr McMahon lives in the USA. I discuss where relevant below the weight which I am able to give to Mr McMahon’s statement.

NON EXPERT EVIDENCE AND LATE ATTEMPTS TO ADDUCE EVIDENCE

There was an issue about the difference between various recorded versions of the song. “Expert” evidence had been adduced in an unusual way.

  1. There was annexed to the Particulars of Claim a letter from the well-known expert, Peter Oxendale, which he had sent to Mr Fogarty after listening to the Original Song and the Album Version. He commented on the music in particular that
  • Both versions were in the same key, at similar tempi and with similar instrumentation
  • Both commenced with the same guitar riffs
  • The riffs were repeated in both versions as instrumental ‘hooks’
  • Both featured the same chord sequences.

There was however no formal expert evidence on the question of whether the music of the Album version is an original copyright work and Mr Oxendale’s informal letter can plainly not be treated as if it were an unchallenged expert report. I must therefore decide the point on the basis of the written and oral evidence and by listening to the three versions of the Song provided to me.

  1. On the second day of the trial, Mr Sharples sought my permission to introduce and rely on a further audio file which he had extracted from some of the original tapes in his possession as it included the string parts of the Album Version. The existence of the original audio files had been disclosed by Mr Sharples, but the Claimants had not been provided with copies of them nor with facilities to listen to them on inspection. For the reasons given in an extempore judgment at the hearing, I refused the Defendant permission to rely on that file, and it is a matter of some concern to me that audio files which were plainly of potential significance were not made available at a time when the Claimants’ witnesses could have considered them. As a result, the only sound recordings available to me were of the three versions of the Song.”

THE CONCLUSION

The recorder concluded that the defendant had made a small contribution to the album version of the song.  His contribution as author would have been properly reflected by a 20% share in the copyright in the music in the Album version.

HAS THE IPEC LET US ALL DOWN?

I have said before that one of the best aspects of IPEC judgments is the use of photographs and diagrams. It makes the subject interesting. However In this case the recorder listened to various versions of the song to make an assessment, but there is  no soundfile at all attached to  the judgment.

I am, I think, duty bound to remedy this. The song can be found on Youtube (I am not sure which version. However I cannot hear strings).

HOW THE SONG FARED

According to official charts the song Touch Sensitive spend 0 weeks in the UK top 75s.

THE PERILS OF LETTING CLIENTS TAKE THE WITNESS STATEMENTS

Although the arguments as to the claimant’s drafting of the witness statements was largely rejected in this case it is wise to be aware of the potential problems. See the judgment of Judge Coulson QC sitting as a judge of the High Court in Mahmoud Assi v Dina Foods Limited [2005] EWHC 1099 (QB)2005 WL 1534614. Judge Coulson QC sitting as a judge of the High Court.

“The Preparation of the Claimant’s Evidence:

30 One of the attacks made by the Defendant upon the Claimant’s evidence was that the written statements of at least some of the witnesses called to give evidence on his behalf had been drafted by the Claimant himself. This allegation was supported in two ways: by comparing the words used by different witnesses in different statements, and by reference to the evidence of Mr Mahmood Najjar.

31 One example of the use of precisely the same words in statements which purported to come from three different people, was identified in Mr. Atkins’ cross-examination of the Claimant’s witnesses. In Mr. Kasso’s statement, at para.5, it said:

“At that time we were in Hackney. On the first week I found out that the company was in financial difficulties and the business was very badly shaken, to the point of collapse”.

In Mr. Najjar’s statement, at para.14, it said:

“After a couple of weeks working with Dina Foods I find out the company was facing big financial difficulties, a major financial disaster, and the business was badly shaken to the point of collapse”.

In Mrs. Klein’s statement, at para.6, it said:

“At the time we were in Hackney. After a couple of weeks I found out that the company was in financial difficulties and the business was badly shaken to the point of collapse”.

32 In looking at the various statements myself, I have found a number of other examples of this tendency….

33 It seems to me, therefore, clear beyond doubt that at least some of the witness statements prepared on behalf of the Claimant were written by the same person. Whilst it can sometimes be the case that witness statements are drafted by solicitors, they will always endeavour to speak to the witnesses first and put down their evidence in their own words. That plainly did not happen here, as the wholesale repetition of phrases, sentences and even entire paragraphs, in statement after statement, makes all too clear.

34 In my judgment, this has reduced, and possibly even extinguished altogether, the reliability of the evidence prepared in this way. It was nothing less than an abuse of the procedure, now habitually adopted in civil cases, whereby, in order to save time and costs, evidence in chief is set out in writing in advance of the trial. Such an abuse is even more inexcusable where, as here, the statements were in English, but where many of the witnesses concerned would not claim to read or write English with any fluency at all. In addition, what made this abuse of the process so much more serious in this case was the identity of the person drafting these identical statements.”

35 I find that it was the Claimant himself who drafted at least some of these other statements, and was therefore purporting to direct what these other witnesses actually said in evidence…

37 Accordingly, I find that many of the written statements provided on behalf of the Claimant are inherently unreliable because they were drafted by the Claimant himself, with scant regard for the evidence that the relevant witnesses might themselves have given if their evidence had been prepared in the conventional way.

RELATED POSTS ON WITNESS CREDIBILITY

1. Litigators must know about credibility.

2. Witness Statements and Witness Evidence: More about Credibility.

3. Which Witness will be believed?Is it all a lottery?

4. The witnesses say the other side is lying: What does the judge do?

5. Assessing the reliability of witnesses: How does the judge decide?

6.  Which witness is going to be believed? A High Court case.

7. The Mitchell case and witness evidence: credibility, strong views and reliability.

8. Witness statements and witness credibility: getting back to basics

9. Witness credibility: what factors does the Court look at?

10. That “difficult second statement”: its hardly ever going to be a hit.

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