MORE ON WITNESS CREDIBILITY: THE DOG THAT OBTAINED A MBA (WITH BETTER GRADES THAN THE WITNESS)

The post on the Canadian case of The Hearing Clinic (Niagara Falls)  -v- Ontario 2014 ONAC 5831  attracted a lot of views and a lot of comments.  I am grateful to Chris Rees  for pointing out the judgment of Mr Justice Ramsey in BSky B -v- HP Enterprises Ltd [2010] EWHC 86 (TCC). This contains some interesting comments on the credibility of witnesses and how the court will approach expert witnesses.

THE CASE

Sky were bringing an action alleging fraudulent and negligent misrepresentations in relation to a system to improve customer services

THE CREDIBILITY OF WITNESSES

Witness credibility was important. The judge had words to say about one witness in particular.

“Credibility of Witnesses
Joe Galloway
The Concordia MBA
  • In his first witness statement at paragraph 8, Joe Galloway stated that “I hold an MBA from Concordia College, St. Johns (1995 to 1996)”. Whilst it is, superficially, correct that Concordia College had granted him an MBA, as set out below it was not a genuine degree and was not obtained by study in 1995 to 1996. However, on being asked questions about that degree Joe Galloway gave evidence to the court over a prolonged period which EDS fully accept, as they have to, was completely false. This led to the termination of his employment by EDSC and to EDS having to accept that their main witness had lied in giving his evidence. He was also the person who, as Managing Director of the relevant part of EDS, directed and was fully involved in EDS’ Response to the ITT and in the various matters which are alleged by Sky to give rise to the misrepresentations in this case.
  • It is necessary for me to set out in more detail the way in which the evidence relating to the Concordia MBA developed.
  • When he first gave evidence, he was asked a series of questions on Day 37. He was shown a website for Concordia College and University which he said he did not recognise. He said that he was in St John in the US Virgin Islands and attended Concordia College for approximately a year which involved attendance at classes. He said that he had a diploma or degree certificate and transcripts of his marks which were, in the end, produced to the Court. He was taken to the website for Concordia College which stated as follows:
You may have done past courses and other learning which equals an Associate, Bachelor or Master degree but you accumulated that learning in a variety of contexts with no resulting degree outcome. Meeting your needs, Concordia College’s online prior learning assessment process may conclude with an accredited degree in 24 hours, in the subject of your prior studies. Your transcripts then credibly document all of your learning.
  • One of the pages of the website referred to some of the successful Concordia College graduates and by clicking on a tab it showed Joe Galloway as one of those graduates. He maintained that he had not seen the website before.
  • In fact, Concordia College is a website which provides on-line degrees for anyone who makes an application and pays the required fee. This was effectively and amusingly demonstrated by an application which was made on the website for an MBA degree for a dog “Lulu” belonging to Mark Howard QC. Without any difficulty the dog was able to obtain a degree certificate and transcripts which were in identical form to those later produced by Joe Galloway but with marks which, in fact, were better than those given to him. In addition, a recommendation letter was provided to Mr Galloway and the dog by a person who purported to be President and Vice-Chancellor of Concordia College and University in the following terms:
As Head of Department at Concordia College & University, I am writing this academic letter of recommendation to you in respect of our alumnus Joseph Michael Galloway.
Mr. Galloway is conferred the degree, rank and academic status Master of Business Administration with a major in International Business effective 19 May 1996 upon as a consequence of our widely reputed degree programme, and of our guided academic research into then subjects.
During his connection with Concordia College & University, we experienced Mr. Galloway as a conscientious and orderly element who proved the habit of timely and correct study and research to be intrinsic to his person. He successfully completed all requirements of our Board of Examiners within the mutually agreed time limitations. Mr. Galloway demonstrated that he is prepared and fully equipped to add valuable apprenticeship to our institution’s activities by means of talented and profoundly investigated subject treatment.
Hence it is our privilege to recommend the academic experience, methodical working and educational assiduity of Joseph Michael Galloway to you since we bear the true conviction that Mr. Galloway shall not cease to expose his capacities as a meaningful acquisition to fitting your purpose.
  • Whilst the underlying lie was that Joe Galloway had quite evidently obtained a fake degree from the Concordia Collage website, he then gave evidence both on Day 37 and when he returned on Days 45 to 46 which was palpably dishonest both in answer to questions in cross-examination and also in answer to questions from the Court.
  • In that evidence he maintained that he had not purchased his MBA degree online. Rather he said that he had in fact attended classes at a building used by Concordia College at St John over the period 1994 or 1995 to 1996, studying to obtain the degree. He said that he attended Concordia College whilst he was employed by BSG/Alliance IT working on a project on St John for Coca Cola, which required him to be based for the majority of his time on St John. He said that he travelled to and from St John by plane, flying into and out of the island. He explained that when he attended Concordia College “there were a number of buildings that I went to. I can remember three distinct buildings that we went to. Block, office block buildings in and around the locations of the commercial area that I was working in for Coca Cola.”
  • He said he attended between 5 and 10 classes, which were “across multiple days. Multiple weeks, multiple months”. He said that they were “once a week for three hours” across a term. Later he said in answer to a question from the Court: “an average programme would be one three-hour class per night per course. So if, for example, in one semester block, I would have three courses, I would have three nights each with one three-hour class per week. So for example, Monday, I might go for three hours, Wednesday I might go for three hours and Thursday, I might go for three hours.” He said that there were “exams at the end of each class” and that some class sizes “were five people, some class sizes were eight to ten” but he did not ask anybody their name.
  • He explained that he was working on St John on a project for Coca Cola and said “it was a long project. We were there a total of 15 months, but I would be there for a time and then go away and then come back. Sometimes the gap would be a week, and sometimes the gap would be up to about three weeks, especially in the holiday period.” He said that he was living in “a hotel environment.” He said that he “was working with a number of independent Coca Cola Distributors that were in the area” and that whilst there was no Coca Cola bottling plant or anything of the nature there but there was a Coca Cola office which was clearly described as a Coca Cola facility with “Coca Cola marketing, advertising materials around.”
  • In relation to travelling to St John he said: “As I recall, there was a small commuter flight that went back and forth to St Johns.” and which went “From St Thomas which is the largest island to St John.” He said that it was a “Four – six seater kind of airplane”. After he had been told there was no airport on St John and that St Thomas was two kilometres away he was later asked whether he maintained that he flew on to St John and he replied “As I said before, I don’t recall specifically.”
  • He said that he could provide “the graduate materials that I worked on, the work books, the books, that sort of thing. I am happy to pass those along to you.” He said that would be “somewhere between five and ten textbooks”, which were “books that are associated with the class”. When he did provide a book EDS’ solicitors said that Joe Galloway “recalls having this for some time but cannot recallwhether he used this as part of any of his studies”. That book was “The Customer Connection” by John Guaspari and bore a barcode, stickers and pencil markings which linked it with the library of the St Charles, Missouri campus of Sanford-Brown College near his current home in St Louis, Missouri and evidently was a recent acquisition.
  • In fact, as I have said, Sky produced two witness statements from David Phillips, a solicitor from Herbert Smith LLP who visited the US Virgin Islands during the trial and a witness statement from Senator Liston Davis, a US Virgin Islands senator, a former Superintendent of Schools, Commissioner of Education and member of the Board of Education in the US Virgin Islands and the current Chairman of the US Virgin Islands Legislative Committee on Education, Culture and Youth.
  • This evidence, which was not challenged, showed that there was not and never had been a Concordia College & University on St John; there was not, nor ever had been a Coca Cola office or facility on St John; there was not, nor ever had been an airport on St John and it was not possible to fly onto the island. The closest island, St Thomas, is about two kilometres away.
  • Sky submit that, as a result, Joe Galloway revealed himself in his evidence to be a person with a wholesale disregard for the truth, entirely willing to lie and to make things up in order to suit his needs. They say that he revealed himself as a man who could lie without any palpable change in his disposition or any outward signs of unease and that he repeatedly perjured himself, deliberately and knowingly seeking to mislead the Court. Sky submit that, overall, the Court cannot but come to the conclusion that Joe Galloway’s evidence as a whole is a complete lie.
  • EDS accept that Joe Galloway lied to the court in relation to his MBA and he has been dismissed from his employment by EDSC as a result.
  • EDS submit that it does not follow that all his evidence was false. They referred to the decision of Flaux J in Grosvenor Casinos v National Bank of Abu Dhabi [2008] EWHC 511 (Comm) where the claimant relied on other incidents of wrongdoing on the part of the bank’s officer as evidence suggesting that he was prepared to tell lies. Flaux J said at [113] and [126] that there was force in a submission that the evidence demonstrated a propensity to act dishonestly “but I consider the court must guard against merely concluding on the basis of this material that he was also dishonest on 8 February 2000 unless there is other cogent evidence to support that conclusion.” He said that whilst the other acts of dishonesty are obviously of some relevance in assessing whether he was a rogue banker, “I do not regard the subsequent dishonesty in relation to the letter and the guarantees as cogent evidence that he made a knowingly false statement on 8 February 2000. There is no material before the Court to suggest that any such false statements were made to assist, let alone at the behest of, the Ruler.”
  • They also referred me to the decision of Peter Smith J in Masood and others v Mohammad Zahoor and others [2008] EWHC 1034 (Ch)at [130] where he said: “Where cases turn on the credibility of witnesses it is important to consider the evidence as a whole. As I said in EPI whilst a witness’ veracity is challenged successfully by demonstrating that the witness has lied it is important to differentiate between establishing that a witness has lied in respect of a particular point as opposed to whether or not his evidence as a whole is a complete lie ….”
  • I was also referred to the familiar Lucas direction in criminal cases and what Lord Taylor said in R v Goodway [1993] 4 All ER 894 that a jury “must be satisfied that there is no innocent motive for the lie and [they] should be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame, or out of a wish to conceal disgraceful behaviour.”
  • EDS submit that, Joe Galloway’s evidence on the relevant issues was credible and he did not try to gloss the facts in favour of EDS.
  • EDS accept, though, that in the light of his evidence concerning his MBA degree, Joe Galloway’s evidence on other matters had to be treated with caution. They accept that the court will not be as reluctant as it normally would be to accept that he is wrong or even knowingly wrong in his evidence on other matters. However they submit that his evidence should, nevertheless, be accepted where it is supported by other evidence or appears inherently likely and indeed it should be accepted unless there is an objective reason to reject it. They say that, as in Grosvenor, the Court should guard against merely concluding on the basis of the evidence that Joe Galloway was dishonest in relation to his degree that he was also dishonest in relation to the making of representations to Sky in relation to the bid unless there is other cogent evidence to support that conclusion.
  • This is not a case where there was merely a lie as to the MBA degree. Such a lie might have had a limited effect on credibility and might be explicable on the basis that Joe Galloway wished to bolster his academic qualifications and was embarrassed about the way he did it. However his dishonesty did not stop at that. He then gave perjured evidence about the MBA, including repeatedly giving dishonest answers about the circumstances in which he gained his MBA and worked in St John on a project for Coca Cola. In doing so, he gave his evidence with the same confident manner which he adopted in relation to his other evidence about his involvement in the Sky CRM Project. He therefore demonstrated an astounding ability to be dishonest, making up a whole story about being in St John, working there and studying at Concordia College. EDS properly distance themselves from his evidence and realistically accept that his evidence should be treated with caution.
  • In my judgment, Joe Galloway’s credibility was completely destroyed by his perjured evidence over a prolonged period. It is simply not possible to distinguish between evidence which he gave on this aspect and on other aspects of the case. My general approach to his evidence has therefore to be that I cannot rely on the truth of his evidence unless it is supported by other evidence or there is some other reason to accept it, such as it being inherently liable to be true.
  • Having observed him over the period he gave his evidence and heard his answers to questions put in cross-examination and by me, which have been shown to be dishonest, I also consider that this reflects upon his propensity to be dishonest whenever he sees it in his interest, in his business dealings. Whilst, of course, this does not prove that Joe Galloway made dishonest representations, it is a significant factor which I have to take into account in assessing whether he was dishonest in his dealings with Sky.”

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 the credibility of witnesses. 

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