Truth or costs savings: dealing with a tired, unwell and confused witness

PatLit missed this Patents Court decision of Mr Justice Arnold of 15 June 2009 at the time, but it throws some light on the relationship between the treatment of witness evidence and the desire to avoid unnecessary costs: it's FNM Corporation Ltd v Drammock International Ltd and LEC (L'Pool) Ltd (the redacted judgment is [2009] EWHC 1294 (Pat)). The action was for infringement, with counterclaims for revocation and ungrounded threats of infringement proceedings. The second defendant LEC was a business that was formerly a supplier of the claimant patent proprietor FNM. Mr Savage was employed by LEC as a chemist for nearly seven years and his evidence regarding the formulation of his employer's products was crucial.

Mr Savage, said the judge, initially "struck me as a truthful witness whose evidence was broadly consistent with that of the other witnesses ...". However, a third witness statement of Mr Savage, served by the defendants, relates that

" ... at the time he gave evidence he was unwell from an infection in both ears, tired from waiting around to give evidence and confused. (He does not mention his age, but he would be entitled to rely on that as well)."

When the trial resumed, the parties agreed that, in the interests of avoiding the costs that would be wasted if the trial were to be adjourned and Mr Savage recalled, Mr Savage's third statement would be admitted without cross-examination and FNM would be at liberty to submit that Mr Savage's evidence was false without putting that allegation to him in cross-examination as would normally be required. Said the judge:

"Although I was prepared to acquiesce in this arrangement, I have to say that I do not regard it as very satisfactory. It is not fair to the witness and it makes it more difficult for the court to be sure where the truth lies.

As envisaged by this agreement, counsel for FNM submitted that Mr Savage's evidence was false. Indeed, he went so far as to submit that the evidence I have quoted ... above was "a total and obvious concoction". I do not accept this. Mr Savage is a retired professional chemist. He has had no connection with LEC for over 6 years. No cogent reason has been advanced as to why he should engage in an outright lie. ...

It is fair to say that, given the apparent contradiction between some of the things that he said during cross-examination and his subsequent evidence, Mr Savage's evidence has to be treated with some caution. Nevertheless, I am prepared to accept the explanation given in his third statement that he was unwell, tired and confused at the time of his cross-examination".

PatLit wonders if readers know of other recent instances in which the 'truth v cost savings' issue has arisen in this manner, as well as how the evidence of confused and/or unwell witnesses in patent trials might be handled in jurisdictions other than England and Wales.