JUDGES AND WITNESSES 2: POISE AND POLISH IS FAR FROM CONCLUSIVE

This is the second post today on the issue of how judges assess witnesses. In Mudroglu -v- Reddish LLP [2015] EWHC 1044 (Ch) His Honour Judge Keyser QC had to consider issues relating to the credibility of two witnesses.

THE CASE

The claimant was seeking payment for the price of shares. There was an extremely complex history of commercial dealings. However much rested on the credibility of the two witnesses.

THE JUDGMENT ON THE WITNESSES

“General comments on the witnesses

  1. In my judgment, although certain findings of fact are easily arrived at, very great difficulty attends any attempt to piece together a coherent account of events that makes perfect sense of all of the evidence. Having had the advantage of observing both Mr Muduroglu and Mr Lucie-Smith give evidence over prolonged periods, and having thoroughly reviewed both their evidence and the extensive documentation adduced at trial, I shall say something about these two principal witnesses before setting out and explaining the conclusions that I have reached.
  2. Mr Muduroglu was, despite Mr Aldridge’s submissions to the contrary, an impressive witness. The transcript that I have of a morning of his evidence shows that his manner of answering questions translates poorly to paper; the appearance of incoherence in the transcript does not fairly represent the manner in which he communicated orally, largely because he tended to analyse aloud the expressed or implied case that was being put to him in order to understand it and see whether it made sense. Contrary to Mr Aldridge’s submission, I did not find him to be evasive. Indeed, as a witness I found him generally convincing. The question with which that presents me is whether he created this impression because he was largely telling the truth or because, as Mr Aldridge urged me to find, he is a fraudster who was weaving a web of deceit. His case regarding the meeting on 8 April 2010 certainly gives rise to serious questions, which I consider below. I also think it true that he initially presented his case in these proceedings in a manner that was calculated to give the impression that he was the sole beneficial owner of the MHL shares and that Sami was no more than his assistant; this was at best misleading. On the other hand, I consider that too much has been made of what Mr Muduroglu’s counsel at the time said on 23 January 2015 concerning paragraph 4 of his statement in the Credit & Mercantile proceedings (paragraph 9 above), which appeared to attempt to wriggle out of the implications of that evidence. By the time of that hearing, Mr Muduroglu had, albeit belatedly, acknowledged that he and Sami and Mr Wishart were partners on an informal basis in the Kemnal Manor project; and the truth, as both Mr Kerr QC and I think, is that the relationship among those three men was a somewhat untidy and informal one. (I refer also to the evidence concerning Mr Koehne’s understanding of the position; see paragraph 130 below. This illustrates the potential for different perspectives on questions of ownership of shares and entitlement to a profit-share.) The biggest problem with Mr Muduroglu’s evidence is the difficulty in understanding how his present case accords with his failure to assert either the direct agreement with Mr Lucie-Smith for payment of £1,300,000 or his entitlement to payment of that amount at times when he might have been expected to do so.
  3. Mr Lucie-Smith gave evidence with greater poise and polish; this is perhaps to be expected of someone who, as Mr Aldridge reminded me, is an experienced professional with some standing in the financial world. Mr Aldridge submitted that he was “manifestly honest” and that, subject only to the possible question of the stock transfer forms, his evidence was “consistent with everything he [had] said and done previously”. That submission is plausible only if one ignores the documents (and many of them were indeed ignored at trial, for differing reasons); these leave no doubt but that Mr Lucie-Smith is seriously dishonest. I do not feel able to accept any of his evidence unless compelled to do so by inherent probabilities or by other evidence. The most striking problems with his credibility have already emerged in the narrative and will be mentioned further below, but some of the less central matters may conveniently be touched on here.”

POSTS IN THIS SERIES

RELATED POSTS 

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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