Lies where the balance of probabilities lies: a sad tale of two statements of truth

Last December, in "A touch of class? No, just a glass-- but beer's best tasted in glass that's waisted" (here), soon-to-be-guest-Kat Darren Meale provided us with a commentary on the design law issues arising from Utopia Tableware v BBP Marketing Ltd [2013] EWHC 3483, a decision of Mr Recorder Douglas Campbell sitting as an Enterprise Judge in the Intellectual Property Enterprise Court (IPEC) for England and Wales.  This case had a bit of a history since, in June of the same year, Merpel noted some reprehensible goings-on in Utopia Tableware Ltd v BBP Marketing Ltd & The British Bung Manufacturing Company Limited [2013] EWPCC 28, a May 2013 decision of Mr Justice Birss (as he now is) in the Patents County Court (as it then was). In short:

"In early April two individuals who had given witness statements (signed statements of truth) which were used at the earlier hearings admitted that the evidence they had given was deliberately fabricated to mislead the court in order to advance the claimant's interests and that they had conspired together to present false evidence and to lie in their witness statements. False emails had been created and presented to the court as genuine. The two individuals were Mr Stephen Dodd a director of the claimant (Utopia) and Mr Thomas Core, the sales director of Utopia. The circumstances are set out fully in a Fifth Witness Statement of Stephen Dodd dated 5th April 2013, a Second Witness Statement of Thomas Core dated 5th April 2013 and two witness statements of the claimant's solicitor Ralph Cox of the firm Fasken Martineau. There is no suggestion that Mr Cox was involved in the matter".

An interim injunction was granted on the basis of this evidence. That injunction was subsequently been continued; eventually the defendants admitted copying the claimants’ product and the claimants indicated to the court that they no longer relied upon the evidence in issue. Messrs Dodd and Core sought to dissuade Birss J from referring the matter to the Attorney General on the basis that “the contempt was not of the most serious nature.”  The judge was not however impressed.

Not what you think!
Darcy is just visiting ...

The IPKat and Merpel rather lost sight of things after that, and it has taken a nudge all the way from New Zealand to get them focused on the latest developments.  Thanks to this post from Katfriend and fellow blogger Kevin Glover they can now report that, on 31 January, in the Queen's Bench Division of the High Court, Mrs Justice Andrews convicted the two errant directors of contempt of court, Dodd and Core being sentenced to imprisonment for six months and two months respectively. Dodd and Core were removed as directors of the company this Monday, according to the UK’s Companies House website.  The transcript of the decision is not yet available, but Kevin has been promised a copy and will post it when he gets it.

What is the moral of the story? Says the IPKat, it shows that honesty is the best policy: Utopia had enough going for it to be able to prove its case on a balance of probabilities, and should have been content to rely on the strength of its case.  No, says Merpel, it's all about trust: the moral is that litigants will be tempted to fabricate evidence even if they have their own perfectly good ammunition if they don't think they can trust a court and have no confidence in its ability to reach the right outcome.  Sadly, the court these people didn't feel they could trust is one of the safest, most trustworthy they are likely to find, in England and Wales at any rate.

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