Allegations of dishonesty have always been treated very carefully by both the Courts and legal representatives; the Judgement of Her Honour Judge Melissa Clarke (sitting as a High Court Judge) in ATB Sales Ltd v. Rich Energy Ltd and Others [2019] EWHC1207 (IPEC) provides some guidance as to when allegations of dishonesty may be made, particularly when the Court is hearing oral evidence.

The Claim concerned copyright infringement and the Claimant sought an injunction preventing the use of a logo by the Defendants. During oral evidence the Claimant put to the Defendants’ witnesses that their evidence had been dishonest.

The Defendants argued that it was not open to the Court to find dishonesty on the part of their witnesses because dishonesty had not been a pleaded element of the Claimant’s case (pursuant to CPR Part 16 at paragraph 8.2) and so the Defendants’ had not been on notice that there was an allegation of dishonesty to answer in advance.

Rejecting the Defendants’ argument HHJ Melissa Clarke stated that:

“As long as the facts upon which an inference of dishonesty may be based are pleaded, if evidence emerges at trial which the Claimant considers sufficient that the court might properly find dishonesty, even though it was not able to plead it before trial, it must be put to the relevant witness so that he may answer it. It is only then that a court may properly be invited to, and may make, an evidential finding that such a witness was indeed dishonest. This is part of the court's ordinary adjudicative function.”

In conclusion, a witness must have an opportunity to respond to an allegation of dishonesty,  but such an allegation may be properly put to the witness, where there is evidence to support such a finding, even when it was not part of the accuser’s pleaded case.