APPEAL COURT CAN DECIDE ISSUES BETWEEN EXPERTS ON FOREIGN LAW: AND ANOTHER LOOK AT WITNESS STATEMENTS

 The issue of when an appeal can court take its own view on expert evidence was considered in Group Seven Limited -v- Allied Investment Corporation Limited [2015] EWCA Civ 631. The judgment at first instance also makes for informative reading on the issue of witness statements and witness credibility.

THE CASE

The defendant appealed against a finding that he was liable to pay damages. The issue of the relevant law (Maltese law) was of considerable importance. Both sides had called experts in Maltese law.

THE JUDGMENT ON THE ISSUE OF WHETHER THE COURT OF APPEAL COULD REVIEW THE JUDGE’S FINDING IN RELATION THE EXPERTS AND FOREIGN LAW

  1. Mr Tager then submitted that it was not open to this court to decide the point of Maltese law, since we had not seen the experts give their evidence, and much turned on their demeanour. In my judgment, this is an entirely mistaken contention. If the judge failed to give adequate reasons, it is indeed open to us to consider whether his decision was anyway correct on the evidence that was led before him. We have had the opportunity to see a total of 5 experts’ reports from Dr Zammit and Professor Refalo and to read the transcripts of their oral evidence. There was no suggestion by either party that both the experts had not been attempting to assist the court to the best of their ability. In those circumstances, we are in as good a position as the judge to evaluate the difference between their opinions.

THE WITNESSES AT TRIAL

The judge held in colourful terms that each of the third parties had not behaved appropriately,”

Some parts of the judgment are of interest in relation to the judge’s assessment of witnesses for each party. This gives a flavour.
  1. Mr Kooger’s evidence was so sparse on this that he was required by me to produce a further witness statement setting out what happened in respect of these transactions. He produced his fourth witness statement of 17 March 2014. He also availed himself to the opportunity to provide more evidence about the meetings of 4 and 14 October. His evidence only made matters worse in my view and what comes out of Mr Kooger’s evidence is that it is completely unreliable and I can give no credence to anything that he says about what took place at the meetings. I can see what ensued as a result of the meetings and ultimately despite the fact that Mr Kooger with Mr Visser, two very experienced corporate officials, (Kooger being a lawyer and Visser being an accountant) being there to ensure that Allseas’ €100m was protected, the exact opposite was achieved. They were totally unable to explain how that happened. It was not a complicated structure. If one was presented with contractual documents going into many dozens of pages, it might be possible that Messrs Kooger and Visser could be fooled. These documents are not like that and it is difficult to see how anybody trained in reading legal documents as was Mr Kooger could believe they operated in any meaningful way beyond handing the documents over to somebody about whom they knew absolutely nothing at all.
  2. This is demonstrated by paragraphs 226 and 227 of Mr Kooger’s witness statement dated 23rd October 2013. When the name of Nobre was given to him on 16th October 2011, he obviously thought it was a good idea to see what he could find out about him. His ability to research however was limited to a search on the internet. He could find no trace of his name.
  3. He then said “I believe this to be a good thing.” This I find to be unbelievable. If there is no mention of Mr Nobre, he knows nothing about him. If things were said, it would depend on what was said.
  4. This shows the low level of performance of Mr Kooger. The internet is an unwieldy engine to test the truth of things. It can provide pointers but whether those are truthful pointers is often open to question. However, Mr Kooger performs even worse than that. He is reinforced in his confidence about Mr Nobre because there was nothing about Mr Nobre. This is ridiculous.
  5. His fourth witness statement was a woeful witness statement in respect of the meetings. I cannot believe somebody in his position could have been so deluded but that appears to be the case. He simply was led by the nose by Mr Rejniak aided and abetted by Mr Sultana and Mr Nasir where appropriate. It appears to be almost auto-suggestion. A good example of his complete inadequacy is what happened over the Trust Deed. Mr Rejniak assured him that the €100m would be returned within eleven days (they were going through the Trust Deed “line by line”). (Fourth witness statement, paragraph 36). Mr Rejniak got tense and was irritated about putting in the obligation to repay within eleven days and said he would have to go back to the Tier 1 Trader and agree the inclusion. There was an obligation to pay within the first ten banking days of the first payment but not the €100m and it never seems to find its way into the Trust Deed. The ten day first payment clause is completely incomprehensible.
ON THE GENERAL COUNSEL
  1. It is impossible to overstate the level of incompetence demonstrated by Mr Kooger’s evidence at this trial. He did no checks on the background of these people trying to sell this transaction to him. He was in Malta for 9 days and discovered nothing about them. He discovered nothing about the details of the transactions during that 9-day period that amplified what he had been told beforehand. He fell under the spell of Rejniak, Nasir (and Mr Sultana) to such an extent that he became subject to autosuggestion, in effect. He accepted without challenge anything they said. Finally, in October 2011, he signed away control over the €100m, despite being required by Mr Heerema never to agree anything like that and despite the assurances to the contrary that he gave to Mr Heerema in his last communication with him via his email of 14th October 2011. He took comfort from documents which were meaningless (the Trust Deed, for example). His excuse was that he was not a trust lawyer. I find that absurd. He was there as a lawyer to advise Mr Heerema. If he was uncertain as to the law, he should have obtained advice from somebody else. That is what one would expect of a senior in-house legal counsel who might have knowledge of generalities, but would not necessarily have knowledge of specifics. It is plain that he had no idea what the investments were, but was content to accept the vague descriptions provided by the Defendants and fell into the trap of believing in the secrecy of everything. I reject his evidence when he was recalled, that Mr Heerema knew that there was going to be a release. His email referred to above runs totally against that.
  2. Even after that, both he and Mr Heerema rejected Miss Brigit Mayer’s communications and rejected the blandishments of the Metropolitan Police when they told them that they were being defrauded (see paragraph 138 above).”

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.

11. Assessing the credibility of a witness: it is a matter of communication.

12. Evidence, costs and credibility: a Canadian view.

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