MR JUSTICE WARBY
Approved Judgment
NT1 & NT2 v Google LLC
persuasive force as they had was undermined by the exaggerated language
used. The impression conveyed was of an attempt to make a case by
(metaphorically) shouting. After all, it does not seem inherently ridiculous to
suggest that a person who returns from abroad to deal with a crisis, owns
nearly all the shares in a company, and is able to move over £6m out of the
company to his personal accounts in Switzerland has a good measure of
knowledge of the company’s day to day business and practical control over its
conduct. Nor does it seem immediately obvious that, as NT1 would have it, the
business was in fact under the effective control of a man in his early 20s who
held a tiny minority stake in the company.
(5)
Also significant, in my judgment, was the claimant’s evidence about the
formal undertakings given by him and Mr Fitzgerald. In form, those
undertakings embodied admissions by each man that he had previously
consented to or connived at a course of conduct involving a raft of criminal
offences, and a promise that he would not continue to do so. There was a
formal announcement which described each man as a present or former
executive of Alpha. The claimant told me that all he could now recall was that
he gave the undertakings. He did not accept that he had in fact consented to or
connived at any of the offences listed in the undertakings, or that the document
setting them out was evidence that he had done so:
“I, as I said, was not the author of the list and do not
remember the list, [but] I accept that I signed the document.
I do not accept that the semantic point of referring to
"continuing to consent to or connive at the course of" means
that I accept that I had previously been involved in any of
those practices or activities.”
The claimant agreed that there were steps he could have taken, but did not
take, to head off the regulator’s demand for such undertakings. He said he had
chosen not to challenge the demands because he was trying to resolve the
problems not add to them.
(6)
92.
I found this part of the claimant’s evidence most unconvincing. I do not accept
that he could not recall the process. I do not believe that he gave what on any
view were important formal undertakings without reading or understanding
them. I am not persuaded by his evidence that he signed simply to make things
easier for himself and the company. I regard the undertakings as reliable
admissions which form an important element of the evidence in this case. I
regard the claimant’s unreliable evidence about the undertakings as a factor
that undermines his credibility.
Some of the evidence given by the claimant in relation to other parts of the case
further undermined his credibility: see in particular [123] below. Overall, I find
myself unable to accept much of the claimant’s evidence on the inaccuracy issue and,
as a rule, where that evidence conflicts with contemporary documents, and the
inferences that can fairly be drawn from those documents, I accept the latter. I should
add two further comments on aspects of the claimant’s oral evidence.