Court proceedings can be stressful. This is particularly true for matters outside of your control: you may think you know your witnesses and what their evidence is, but once they are in the box, they are on their own. Some people excel as witnesses. Others are like watching a train crash in slow motion.
A recent case concerning a claim by a commercial agent has highlighted the importance of credible witnesses.
In Lawlor v Sandvik Mining and Construction the High Court considered whether Spanish or English law applied to an oral commercial agency arrangement between the parties. Unfortunately for the agent claimant, the judge held that the oral evidence given by Mr Lawlor was “inaccurate and untruthful”.
The judge deemed Mr Lawlor’s evidence as “inconsistent and improbable”, mostly in respect of his evidence regarding his country of residence, his accounts and tax affairs. Ultimately, the judge concluded that Mr Lawlor was “prepared to give untruthful evidence to bolster his case”.
The judge agreed with the Defendant and concluded that Spanish law applied (which meant Mr Lawlor was more likely to receive less compensation for termination of the agency agreement than he would under English law). Interestingly, the judge further observed that, as Mr Lawlor appeared not to have paid any tax during the life of the agency, he was minded to decline to permit Mr Lawlor from proceeding with his claim until he satisfied the court that full declarations of his income had been made!
Mr Lawlor’s unreliable evidence played a key part in the judge’s mind in reaching this decision.
This can be compared with The Royal Bank of Scotland v Highland Financial Partners LP where RBS lost its application for an injunction on the basis that its key witness was deemed to have “unclean hands”. “Unclean hands” can defeat a party’s entitlement to equitable relief, on the basis that their actions have been inequitable, which in plain English means they have behaved dishonestly in some way.
RBS’ main witness, Mr Griffiths, who was an RBS employee and who RBS put forward to provide their evidence, had lied whilst giving evidence at a previous hearing in the same proceedings. Mr Griffiths repeated the lie at the hearing of the injunction application. RBS did not correct Mr Griffiths’ lie at any stage and asserted that he was a truthful witness.
The judge held that had Mr Griffiths “washed his hands”, i.e. come clean, the outcome for RBS may have been different.
What can we learn from these cases?
Choose your witnesses carefully:
If you are acting as a witness:
Recognise that the imagination grows wilder as the memory fades – a trait which is not limited to politicians and government ministers!
Do not lie:
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