A regular theme of this blog has been how important witness credibility is to the outcome of many civil actions. The assessment of credibility is often one of the key tasks of the trial judge at. It is an issue that crosses into virtually every type of civil litigation, and determines the outcome of most trials. The assessment of witnesses cannot be arbitrary and a judge has to give reasons. It is interesting, therefore, to see the observations of the judge at first instance in the case of Dawson -v- Bell  EWCA Civ 196.
The claimant and defendant had been in business together and also in a personal relationship. After the relationship ended there was considerable antagonism and litigation in relation to the running of that business. The claimant alleged that he had been coerced into signing an agreement. The trial judge found, broadly, in favour of the defendant. The claimant’s appeal was unsuccessful.
The Court of Appeal judgment is brilliant in that it manages to avoid the more salacious parts of the case. However it does (unusually) annex the entire judgment at first instance, where the trial judge could not be so delicate.
THE JUDGMENT OF THE TRIAL JUDGE ON THE ISSUE OF WITNESS CREDIBILITY
“The claimant and the defendant are the witnesses whose oral testimony matters most. Assessing the credibility of a claimant who has a fetish for female domination and claims to have been the victim of duress and intimidation by his female partner is not easy. Assessing the credibility of a defendant who denies threatening behaviour, but who has made a career as a dominatrix and appearances in femdom videos is not easy either. Neither was a wholly believable witness. Neither was more obviously giving a truthful and unvarnished account than the other.
The claimant sounded very plausible, but the account given in his two witness statements glossed over so much of the detail of his business relationship with the defendant, and of his negotiations with her, that to my mind it gave a wholly one-sided picture. It painted him as the victim of a bullying and aggressive partner who twisted his arm at every turn to get her way. I find, on the contrary, that the claimant himself was every bit as manipulative as he accused the defendant of being. He enjoyed the lifestyle which money from the company afforded him. He took a good deal of money from AML’s bank account to cover personal expenses and his contribution to the management of the business did not always justify the financial rewards he received. At least this is the impression I have from the contemporaneous records, leaving aside the evidence of the defendant and Mr Hatcher (who may rightly be said to have an axe to grind and for that reason is not wholly reliable).
Apart from ignoring much of the defendant’s case in his two witness statements (e.g. her complaints about the extent to which he paid himself sums of AML’s money which were far greater in total than the sums she received from the company), the claimant’s written evidence was inaccurate in much the same way as was the defendant’s. I give two examples. The first was his explanation of how the B Shares came to be issued. The claimant said that he was unaware that they had been created and that it must have been done by the incorporation agency. But the defendant later obtained a copy of the application to Companies House for the registration of the B shares. It was in the claimant’s handwriting and dated 1st May 2005, more than a year after AML was incorporated. The second is his evidence that, when Mr McColl left the room during the meeting on 27 October 2009, he pleaded with the defendant to improve her offer and was turned down flat. Although in paragraph 54 of the counterclaim the defendant appeared to accept this version of events, I find that it was not true. During that short interval in the meeting, the defendant agreed to treat a sum of £5,000 which she had promised to pay earlier in the month towards one of his credit card bills, but which had not yet been paid as a sum to be added to the price of the shares. So the price in the SPA was increased by this amount to £47,500 and Mr McColl had to get his secretary to amend the draft before signature. Rather than being implacable, as the claimant depicted, the defendant in fact made another concession.
I treat the claimant’s written and oral evidence with considerable circumspection. The emails which he sent himself at the time were in my judgment self-serving and their content must be treated with caution. I am in no doubt that he was a good deal more resilient in negotiating with the defendant than he would have the court believe. As the majority shareholder in AML, the defendant was in the stronger position, but the claimant was intent on salvaging the best deal he could out of the wreckage of his relationship with the defendant. I do not accept that the negotiation was as one-sided as he tried to portray it.
I regard the defendant’s evidence with the same degree of misgiving. She appeared in the witness box as a quietly spoken and almost diminutive figure. She appeared to give thoughtful and considered answers. At times she was tearful. Yet I am certain that beneath the relatively composed exterior which she presented in court, the defendant is a tough individual. I doubt it is possible to make a career in the adult entertainment industry without having that attribute. The contemporaneous correspondence demonstrates that the defendant was not only pro-active in the business but she had a good grasp of business strategy and of the finances, when and if she paid attention to them. I find, however, that she was inconsistent in her attention to the financial details and I think there is force in the claimant’s contention that her moods were changeable.
The defendant’s evidence contained as many, if not more, inaccuracies as the claimant’s. One example was her evidence about having retained personal copyright over her appearances in films in TEM’s catalogue when in fact she had signed a Model Release Form in respect of marketing and distribution not only in the USA but worldwide. Another was the denial in paragraph 119 of her witness statement of 6 July 2012 (her first trial statement) that she had ever agreed to the claimant withdrawing money from AML to meet his liability under the Brewhouse mortgage, when this had already been contradicted by the answer given by her legal team to Request No. 8 in the claimant’s Request for Information dated 28 September 2011.The answer is that the defendant did agree to sums being paid from AML’s bank account to the claimant to enable him to pay the Brewhouse mortgage when that property was not rented out, and the point should have been conceded from the outset.
Although my assessment of the defendant is that she was a tough bargainer who was used to getting her way, I do not accept that the proposals she made to the defendant in negotiations were unreasonable or unfair. There was a process of negotiation in the course of which she made a number of pragmatic concessions. The claimant’s case of duress and intimidation is about the methods the defendant is alleged to have used to secure eventual agreement. On that issue I do not consider that either party gave a truthful account.”
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 basics9. 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.
- The Yeo case: witness evidence and credibility.
- Witness credibility, attendance notes and findings of fact.
- A quick word on witness credibility: what the butler said