How Do You Stop Witnesses Going Rogue

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How Do You Stop Witnesses ‘Going Rogue’?

On 24th February 2022 the Intellectual Property Enterprise Court handed down its judgment in the case of ASR Interiors Limited v AWS Trading Limited. The case facts were nothing unusual and the judge ruled that the Defendant had infringed three registered designs.

The most interesting part of the case emerged when witnesses began testifying. One witness testified via video link. Nothing to see here, right? Well, the reader may think this. However, what emerged thereafter was extraordinary. It became apparent to the judge that the witness was giving evidence whilst driving a commercial van with a camera precariously perched near the passenger’s seat. He seemingly thought it was acceptable to breach road traffic legislation by driving without due care and attention by dividing his attention between the road and the giving of evidence to the court on his mobile phone.

When the judge realised the difficult circus-esque balancing act the witness was attempting, he suspended the hearing forthwith directed the witness to find a safe, convenient and legal place to park and to stop driving. The judge then asked the witness to reconnect and continue providing his testimony once he had done as directed. Was that the end of the tale? Under normal circumstances, anybody directed by a judge would carry out the judge’s instructions.

However, the witness did something a little different. When he reconnected and resumed giving evidence, it became clear that he was situated in an office environment that was not conducive to the provision of evidence due to the noisy, distracting and loud atmosphere. The judge then reasonably requested for the witness to find a more suitable room. When the witness did so, the farce continued when he seemed ill-prepared to give evidence, vacated the room for a short time to retrieve his witness statement so he could seemingly refresh his memory and continue giving evidence.

Undermining the witness’s credibility further the judge commented that the witness was oblivious to the existence of an exhibit he himself had apparently referred to when drafting his own witness statement and the fact that the exhibit was in fact absence from the statement.

The judge had then seemingly reached the end of his tether with the witness. The events which took place would not have been out of place on a classic episode of Candid Camera or Beadles about back in the day. However, there were no hidden cameras, actors or anybody having a laugh as this was a serious case. The judge decided to discount the witness’s oral testimony and proceeded with the written witness statement as he perceived it as being a more realistic version of events. However, when the judge assessed the strength of the evidence he concluded that the statement would not be given any evidential weight.

Lay witnesses should be taking the legal process seriously and be prepared for hearings. In stark contrast to the gentleman in the example witnesses can do this by having their respective witness statement to hand and be familiar with it to ensure they can provide reliable evidence in order to answer any questions during a pressurised cross-examination. They should also ensure that they are aware of any exhibits referred to and have them to hand so they can be referred to whilst giving evidence. Following this strategy will mean witnesses are better placed to provide the court with weightier testimony as the evidence will be coherent, cogent, logical and make sense. A witness’s failure to do this will mean chaotic and disorganised evidence which is a shambles.

The Legists Content Team

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This Article was Written Using the Following Sources

[1] ASR Interiors Limited v AWS Trading Limited [2022] EWHC 372 - ASR Interiors Ltd v AWS Trading Ltd & Anor [2022] EWHC 372 (IPEC) (24 February 2022) (bailii.org)

[2] Hyde, John – Witness on video link tried to give evidence while driving a van – 25 February 2022 - Witness on video link tried to give evidence while driving a van | News | Law Gazette

[3] Section 3 – Road Traffic Act 1988 - Road Traffic Act 1988 (legislation.gov.uk)

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