Cinpres Gas Injection Ltd v Melea Ltd [2006] EWHC 2451 (Ch)

[2006] EWHC 2451 (Ch)Case No HCO3C04152
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
PATENTS COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/10/2006
Before
MR JUSTICE MANN
Between
CINPRES GAS INJECTION LIMITEDClaimantMELEA LIMITEDDefendant
MR. P. PRESCOTT Q.C. and MS. JESSIE BOWHILL (instructed by Messrs. Wragge & Co) for Claimant.MR. I. PURVIS and MR. B. BRANDRETH (instructed by Messrs. Nabarro Nathanson) for Defendant.Hearing Hearing dates: 21 st, 22 nd, 23 rd, 26 th, 27 th, 28 th, 29 th, 30 th June 20063 rd, 4 th, 5 th, 6 th, 7 th, 10 th and 11 th July 2006
Judgment

Mr. Justice Mann :

[1]This is a very strange case. One of its central issues is whether or not a prior judgment was procured by perjury. That is not a wholly unfamiliar point (though it is unusual). What makes this case strange is that the person attacking the earlier judgment on this basis (the claimant) does not seek to prove the perjury from evidence external to that of the perjurer. In this case the claimant has actually produced the alleged perjurer himself who admits that he committed perjury in the earlier proceedings, and he has given evidence on oath to me to that effect. The defendant seeks to say that that man (a Mr Hendry) was telling the truth first time round and is perjuring himself now. So one thing is clear – Mr Hendry has committed perjury. The question for me is whether he has done so in these proceedings or in the earlier ones.[2]In form these proceedings are an application under s.37 of the Patents Act 1977 in which the claimant (“Cinpres”) seeks a declaration that it is entitled to be registered as proprietor of a patent No EP0424435 relating to gas injection moulding technology as used in the plastics industry. At the heart of the action is the question of whether Mr James Hendry discovered or was privy to the invention when he was working for Cinpres or whether he discovered it when he was working for a Mr Ladney some two or three years later. In 1996 there was a determination in the Patents Office (Dr Ferdinando) to the effect that the latter was true, as a result of which in due course the defendant was registered as proprietor of the patent in 2001. In the course of those proceedings (“the first proceedings”), Mr Hendry gave evidence that he discovered the invention when working for Mr Ladney. He now says that that evidence was wrong and perjured and he has given evidence for Cinpres to that effect. He says that he gave perjured evidence because he was pressured to do so by Mr Ladney, and as a result of pressure arising as a result of his own financial circumstances. I have to decide whether his evidence to that effect is to be accepted, and if it is then whether the totality of the evidence justifies the declaration which Cinpres now seek. At the trial before me Mr Peter Prescott QC led for Cinpres; Mr Iain Purvis led for the defendant.

Part II - The inventive concept

[3]It will be convenient to set out shortly the inventive concept. It is not necessary to deal with it in detail.[4]Plastic parts are often made by injecting molten plastic into moulds. The plastic has to be made to penetrate the mould to an appropriate point, and sometimes it is desirable to provide the plastic with a hollow centre. One technique for achieving this is to drive the plastic through the mould by injecting an inert gas behind it. In many moulds the plastic will take various paths round the mould. Where the lines of plastic meet, there can sometimes be a weld mark. There are also potential problems with eventual shrinkage leading to “sink marks”. Gas pressure can help to reduce the latter. Another potential problem is making sure that the plastic gets to all parts of the mould with its desired thickness. The invention helps to achieve the moulding process and address these sort of problems by introducing a form of additional cavity into which “surplus” plastic can run off once it has travelled to the relevant point or points of the mould. This surplus plastic can then be removed from the final product and, if appropriate, its contents can be reground and reused in further injections. The cavities in question are known as overflow wells/cavities or spillover wells/cavities, and the process involved is called spillover.

Part III - Partial dramatis personae

[5]Before turning to the evidence it will be useful to indicate who one or two of the personalities (individual and corporate) in this case are. Mr Hendry. He is now aged 85. He has had a lifetime’s experience in the plastics industry, and is clearly an able man with many useful ideas, some of which have led to useful patents. In recent years he has supplied his services to a variety of people, including Mr Ladney and his companies, under consultancy agreements. In the first half of the 1980s he was engaged by Cinpres, and it is said that while he was there he invented or came across the spillover invention which is the subject (or perhaps part of the subject) of the patent in suit. Mr Ladney. He is an American and is now aged 88. He too has had a lifetime’s experience in the plastics industry. At one stage he owned over a dozen manufacturing plants (through companies). He also owned a large number of patents. His companies included and include Plastic Moulded Technologies Inc and Global Plastics Technologies Inc. He is employed by them, or at least by the former, and has from time to time engaged Mr Hendry to act as a consultant. Milad Limited Partnership (“Milad”). This was a Nevada limited partnership of which Mr Ladney was the general partner. At one stage in the early 1990s it received and held Mr Ladney’s patents relating to gas-assisted injection moulding. Those patents were assigned to Milad as part of an “asset protection” scheme which was a scheme devised to try to put various of Mr Ladney’s assets beyond the reach of his creditors. It was also the employer of one or two of the individuals who figure in this story, and an assignee of certain rights on which it sued Mr Hendry. Mr Ladney claimed to be interested in 1% of this partnership, and professed an utterly implausible level of ignorance as to who the limited partners were. It was “cancelled” from the Nevada register on 16th November 1992. Melea Limited. This is the defendant. It is a Gibraltar registered company to which the patents formerly owned by Milad were assigned. It is part of the asset protection scheme put in place by Mr Ladney – it is the final destination of the patents that were subjected to the scheme. He is not a director or shareholder of it. He professes an almost complete ignorance of it which is again utterly implausible. It has appointed Plastic Moulded Technologies Inc to act for it in the granting of licences, and obtains royalties on those licences. Brooks & Kushman. These are a firm of Michigan patent attorneys who have frequently acted for Mr Ladney, his concerns and for Melea. Two of its partners, a Mr Cantor and a Mr Tuttle, took part in various of the events which make up the history of this action, and they gave evidence to me.

Part IV - The history of this matter

[6]In this part of this judgment I turn to the history of the matter.

The alleged discovery made at Cinpres

[7]Mr Hendry has been involved in the plastics industry from an early age and he is obviously a man of considerable experience whose services and expertise are valued. He has been involved in and with a variety of companies, and at the beginning of the 1980s he was engaged by one of Mr Ladney’s companies. In 1985 he was providing consultancy services to Cinpres. He was not at the premises full time. He would be there for about three or four weeks at a time, and then away for three or four weeks, usually in the United States. The managing director of Cinpres at the time was Mr Steven Jordan, who gave evidence to me. Also employed by Cinpres was a young man called Matthew Sayer. He was learning about plastic moulding technology, and he struck up a close relationship with Mr Hendry in the nature of a good student/teacher relationship. They obviously got on well together and socialised a lot as well as working closely together in the workshop.[8]The business of Cinpres was and is that of making moulded plastic articles. Various technologies are involved in that, including gas injection. Mr Hendry gave evidence that in 1985 Cinpres received a mould for making paintbrushes from a company. He was carrying out various activities in order to see how best to make the product. From somewhere came the suggestion that he should try gas injection with the mould. One Saturday morning he attempted to do this. At some stage in the morning (which he put at some time in the winter because he remembers it being cold outside) he left the machinery on and ready to deploy while he went out to get some refreshments. When he came back he did not notice that the plastic had been heated at a high temperature for longer than usual, with the result that its viscosity had decreased. When he then operated the injection mechanism, with gas, the process of injection was carried out more vigorously than normal. The effect was that the mould split slightly and plastic and gas vented through certain vents and other parts. He was concerned that he had damaged the mould, but it turned out that he had not. When he examined the product, it appeared to be thinner and lighter than usual in a way which was desirable. The moulded items had “fazed” around the outside, which created rough edges at the point or points where the molten plastic had shot out into the room. The plastic had not been collected anywhere – it had simply been ejected into the workshop. He thought this an interesting result, and was able to repeat it. He showed the product to Mr Jordan, but Mr Jordan failed to appreciate that there was anything particularly significant about it. In the end, no paintbrush handle mouldings were produced other than those experimental ones, because there was a problem in relation to the size of one part of the mouldings. That problem was not in any way related to the events I have just described.[9]Mr Hendry says he realised that the discovery could have a wide application where it was necessary to lighten plastic parts and where one wanted to make sure that the gas got to the extremity of the mould and eliminated sink marks. Mr Jordan, however, did not consider that idea to be significant in the context of what Cinpres was doing at the time, and it was not taken further. Mr Hendry cannot remember whether he discussed what he had discovered with Mr Sayer. Mr Sayer says he did not.[10]Mr Hendry says that at some time at the beginning of 1985 and after the incident with the paintbrush mould, he saw a mould for a plastic plinth to be made for Bell & Howell. He thought it might be suitable for gas-assisted injection moulding. The mould had four potential runners (effectively tracks) through which molten plastic could pass into the cavity of the moulded shape itself. They were cruciform and have been denominated by the four points of the compass. A test was carried out using just the north and south runners, with the east and west runners blocked off. This left unacceptable weld lines and sink marks where the gas had failed to penetrate. They tried using just the north runner, blocking the other three off, and Mr Hendry, recalling his experience with the paintbrush mould, suggested using the south runner as a spillover cavity. This would be achieved by blocking the south runner at its northern end so that plastic could travel round the mould and spillover into the south runner. There were experiments involving adding more and more plastic until the gas did indeed push the plastic right the way round the mould with excess plastic passing into the spillover cavity. This approach, said Mr Hendry, created only one weld line which was smaller than the other weld lines produced, and there were no sink marks at all.[11]In his evidence in chief Mr Hendry said that he suggested using a spillover cavity on the Bell & Howell mould in order to solve problems of weld lines and sink marks. He says he was fairly certain that Mr Sayer would have been with him during the trials as he was his assistant. He only worked on the mould for one day and returned to the USA in early February 1985. He left the fine tuning of the process to Mr Sayer. He did not work on the mould thereafter. In cross-examination he continued to insist that he proposed and supervised the test injections of the plinth, but his evidence betrayed some inconsistencies as to how he went about it and the order of the events in the trials. That is not surprising – he was trying to recall detailed events of over 20 years ago. He was, however, firm that he was involved in the process which resulted in the discovery that leaving the south runner open achieved a useful spillover effect.[12]There is some documentary evidence of dates which is said to assist in determining whether Mr Hendry’s evidence about all this is correct. His passport shows that he was in this country for about a week from 7th January, and between 1st and 9th February. Then he was not in this country until mid-April. Such evidence as there is about the Bell & Howell mould shows that at 1st February some minor modifications were required so that it could be fitted to the press. That suggests that the trial cannot have taken place at that point because it could not start until the mould was fitted to the press. A document of 19th February shows certain modifications were to be made, which did not include anything relating to spillover. However, it refers to a need to remove “flash”, which is surplus material on the product that requires trimming. That demonstrates that the mould had been tested before that date. All modifications were complete by 25th March. This means that if Mr Hendry had any involvement in the deployment of the south runner as spillover it must have been between 1st and 9th February. If that is right then the paintbrush incident must have taken place either in that same period, or in the January period. The tenor of the evidence is against the paintbrush incident and the plinth development happening within a small number of days of each other, so that would put the paintbrush incident (if it happened) in the January window. These are plausible timeframes.[13]There was one further occasion on which spillover techniques came up while Mr Hendry was engaged by Cinpres. During 1985 he made various visits to a German company called Schade. During one of those visits he saw drawings of an air deflector part. He does not know whether that was the same part as a part that Cinpres had provided. He discussed with a Schade representative, one Dr Lettman, the latter’s concerns that gas would not go all the way to the end of the mould and sink marks might occur. Mr Hendry agreed, but thinking back to what had happened earlier in the year with the paintbrushes and the Bell & Howell mould, he suggested some form of spillover at the end of each mould. He did not do any further work on the mould.[14]In December 1985 Mr Hendry left Cinpres as a result of a dispute with Mr Jordan and a Mr Geoff Gahan. He claimed that they were in breach of promises to pay him certain fees. The details do not matter. He was very angry with Cinpres at the way he was treated, and he says he remains angry. As a result of the disagreement he left Cinpres, and soon after that began to work for Mr Ladney.[15]Mr Sayer’s evidence was that he was not told of the paintbrush mould incident. However, he does describe working on the plinth, and he describes a process of trial and error during the course of which the south runner was left open and used as a spillover, thereby achieving the desirable result of removing a weld line which would otherwise be there. He cannot remember whether he did this of his own initiative or whether Mr Hendry suggested it. However, he was sure that if Mr Hendry was not involved then he would have kept Mr Hendry informed of what he was doing. Again, he cannot recall informing Mr Hendry, but the relationship between them was such that that is what he would have expected to have done. He says that the technique of using a spillover area like this was then included in the Cinpres manual.[16]Mr Jordan gave evidence about this by video link. He has a recollection of the test in which the south runner was blocked at its northern end by a piece of plastic, and his recollection is that it was Mr Sayer who did this. He has no recollection of Mr Hendry being in the vicinity of the moulding machine at the time. He therefore has no recollection that Mr Hendry was involved in the process. These events are, of course, events which took place over 20 years ago, and recollections may have dimmed. However, for what it is worth, it must be remembered that Mr Jordan had occasion to try to recall these events in the first half of the 1990s, when the Patent Office proceedings were pending. He could not remember Mr Hendry being present then either. He did, however, have a recollection of Mr Hendry inspecting a plinth sample at a later stage of the creation process, that is to say when it was being finished. He remembers Mr Hendry holding it up to the light, and he remembered Mr Hendry as having a cigar in his mouth at the time (a safety problem which he had not yet managed to address). Although Mr Jordan did not give evidence of this involvement of Mr Hendry before, I think that Mr Jordan is a careful and conscientious witness and that his recollection about this is correct. This means that Mr Hendry did have an involvement with the plinth. However, Mr Jordan’s evidence does not support the case that Mr Hendry was involved in the original decision as to which runners to block off. I think it more likely than not that if Mr Hendry had been as closely involved as he says, something to this effect would have registered and stuck with Mr Jordan. The fact that it did not suggests that Mr Hendry’s involvement was not as close as he (Mr Hendry) suggests. I take this into account in arriving at my final findings in this respect.

Mr Hendry joins Mr Ladney, the patent application and the commencement of the first proceedings

[17]After Mr Hendry left Cinpres there were proceedings between them based on an allegation of a misuse, or threatened misuse, of confidential information. Those proceedings were compromised by an agreement dated 28th November 1986. One of the terms of that agreement is the term relied on by Cinpres as entitling it to the patent. The agreement is between the claimant, Hendry Enterprises Incorporated (“HEI”)(a vehicle of Mr Hendry), Mr Hendry and Mr Gahan. Clause 4 deals with confidentiality, and clause 4.2 provides as follows:
“4.2 At all times during the Confidentiality Period, Hendry and HEI shall keep all information they possess with respect to the Cinpres Technology beyond that protected under clause 4.1 confidential to the extent in accordance with their regular business practice.”
The Confidentiality Period was seven years. The Cinpres Technology was defined as follows:
“The ‘Cinpres Technology’ means technology developed by or for Cinpres or PFM prior to December 18, 1985 for the production of plastic mouldings having a smooth surface, certain features of which are described in the Patents.”
The Patents do not matter for these purposes. The agreement provided for outstanding proceedings to be brought to a halt and $50,000 was to be paid to Mr Hendry within ten days. Clause 4.2 is the provision relied on in this action. It is said that the spillover technique was confidential when it was developed. However, Mr Hendry’s cross-examination revealed that he considered that once he had left, the concept was not confidential because Cinpres had done nothing about protecting it and produced parts which were in the public domain so that everybody could see how those parts were made. He then retracted that evidence and claimed some degree of confidentiality for the spillover technology.[18]On 18th April 1987 Mr Hendry started to work for Mr Ladney as a consultant. One of the first projects on which he worked was the moulding of a door for a car designed by General Motors called the Baretta. According to Mr Hendry, this car and door were not going to be mass-developed – it seems to have been more of a design concept. However, Mr Ladney wished to demonstrate to General Motors that a door could be produced in plastic. Apparently a full plastic door would weigh over 40 lbs and General Motors wished to get it down to just over 20. Mr Hendry decided to try gas-assisted injection moulding, and to that end deployed the spillover technique. By doing so, he got the door down to 23 or 24 lbs, though that was not quite enough for General Motors. At that time gas assisted injection was a novelty. It was put to Mr Hendry that he cannot have believed that the spillover technique was confidential to Cinpres, because if he had believed that he would not have used it on the Baretta door, and furthermore, would not have exposed General Motors to the risk of a claim that they had been party to the misuse of confidential information. He continued to assert at this point that the spillover technique was confidential. In a previous deposition in proceedings in Tampa, Florida, Mr Hendry had said, under oath, that he did not use any Cinpres confidential information. In cross-examination before me he said he was lying in his deposition when he said that.[19]Be that as it may, Mr Hendry did indeed use the spillover technology in making the Baretta door. He worked on the door with a Mr Nelson, who also worked for Mr Ladney at the time. Mr Nelson was called to give evidence for the defendant. In his witness statement he stated that Mr Hendry never said he had done a spillover job before and that the use of spillover (or overflow as he referred to it) was entirely new to Mr Hendry and the team. He said he would have expected Mr Hendry to mention any prior experience he had had with overflow or overspill if he had had any, and he did not. This witness statement was signed in March 2006. Some two and a half years earlier, in November 2003, he had had a conversation with a Ms Sara McNeill, a solicitor employed by Wragge & Co who act for the claimant. An attendance note of that conversation records that he said that Mr Hendry might have said that he had used overflow wells before, and while it was not a clear memory, Mr Nelson thought that Mr Hendry had said something about prior experience with overflow wells. He also said that while the tool was being prepared, Mr Hendry seemed to know exactly what he was doing and seemed experienced in relation to the overflow wells part of the tool. Mr Nelson did not dispute the accuracy of that note. The quality of Mr Nelson’s evidence was such that I can place no reliance on his evidence-in-chief. For what it may be worth, it may well be that what he said to Ms McNeill, being more unguarded, was more reliable. Since no reason was suggested to him for the change in his account of matters, I do not think that I can properly make a finding as to the reasons for it.[20]Mr Hendry continued to provide consultancy services to Mr Ladney. After developing the Baretta door, he says he had a conversation about the door with Mr Ladney and another consultant, Mr Paul Colgate. He believes that it was Mr Colgate who first suggested that the technique should be patented, and Mr Hendry says that he did not think it could be patented since overflow wells were nothing more than an existing technique which he described as “cold slug wells”. He added that in any event it would not be possible to obtain the patent as he had already accidentally discovered the invention at Cinpres. He recalls Mr Ladney as being furious and as saying that the patent application was going to be filed regardless of what Mr Hendry had just said. In his cross-examination he claimed that Mr Ladney forced him to apply for it, though he said this was coupled with his dislike for Cinpres. No details are given of how it is that he was forced to do it.[21]Mr Ladney said that this account of the conversation was simply not true and it never happened. He claims to have spoken to Mr Colgate, who has no recollection of any such conversation. There was no reason why Mr Colgate would be present at any such conversation. He claims that Mr Hendry approached Brooks Kushman (Mr Ladney’s patent attorneys) direct, and had an incentive to do so because he was paid 15% commission on all sales of patented equipment. He also claimed that he would never have allowed a patent to be filed knowing that the invention had been practised by someone else because he would have assumed that that other person (Cinpres) would have a lot of material to show that they had got there first.[22]On 11th July 1988 Mr Hendry filed US patent application no 217175, which is said to incorporate the spillover invention. On 26th June 1989 Mr Ladney filed an international patent application no PCT/US89/02815, naming Mr Hendry as the sole inventor. This latter application eventually became the European patent application on which the patent in suit was granted. On 26th June 1991 Mr Ladney assigned the benefit of the application to Milad, and by a further assignment dated 10th June 1993 the benefit of the application was assigned to the defendant. In due course, when granted, the patent was thus granted to the defendant.[23]Mr Hendry’s period of engagement as consultant to Mr Ladney came to an end in April 1991. He describes his times there as getting more difficult. His evidence was that he found Mr Ladney difficult to work with. Mr Ladney created an environment which was hostile and stifled creativity, and things got worse throughout that period. He claims to have been relieved when the period came to an end.[24]A Mr van der Muren gave evidence of a discussion with Mr Hendry in 1991. He is an American who was at one time employed by Mr Ladney. He flew here to give evidence in this case. When travelling with Mr Hendry on Mr Ladney’s business, he observed (but did not hear) what he was subsequently informed was a heated telephone conversation between Mr Hendry and Mr Ladney. Later on that day, over dinner, Mr Hendry explained that Mr Ladney was trying to do him down over some money and that if he persisted in that he had a “trump card or an ace in his back pocket”, namely that if Mr Ladney ever forced his hand, Mr Hendry would reveal that he had originally come up with the spillover technology whilst working for Cinpres. If I accept that evidence, then it tends to support the case of the claimants as to whether Mr Hendry was involved in spillover at Cinpres, and to support the case that Mr Hendry perjured himself in previous proceedings. I say “tends to support” because that is not the only explanation. The other explanation is that when Mr Hendry said what he said to Mr van der Muren, he was threatening to tell an untruth, not the truth, in order to damage Mr Ladney’s interests. It was not put to Mr van der Muren that he was deliberately making up this evidence. It was suggested that he mis-remembered, and that what Mr Hendry said (if anything) was that Mr Ladney needed his assistance in proceedings and that Mr Hendry would not stand up in court and say what was necessary if Mr Ladney was difficult about money. Mr van der Muren did not accept this gloss and stood by his original version of events. I do not consider that Mr van der Muren came all the way here to give evidence that he knew to be wrong. I consider that he was doing his best when giving evidence to me. In the circumstances I accept that Mr Hendry said something along the lines of what Mr van der Muren said he said.[25]The dispute between Mr Hendry and Mr Ladney that I have just referred to related to fees. Mr Hendry told me that he was to be entitled to a third instalment of some fees, amounting to $150,000, shortly after his engagement terminated in April 1991, and he was concerned that Mr Ladney was not going to pay it. He says that in fact Mr Ladney never did pay it. Mr Hendry left Mr Ladney’s employment on 19th April 1991. At a conference or presentation in April 1991 he proclaimed his pleasure at being a “free man” – that is common ground.[26]A Mr Jon Erikson gave evidence about a conversation that he had had with Mr Hendry and Mr Ladney at about this time. Mr Erikson was an employee engaged in the affairs of Mr Ladney at the time. I put it that way because it is not wholly clear whose employee he was. He had a contract with Milad, but seemed to be engaged in the affairs of Mr Ladney’s companies; but his precise status does not matter (at least for present purposes). Mr Hendry said that in a moment of complaint about the conduct of Mr Ladney he had said to Mr Erikson that he had had enough of Mr Ladney and that he went on to tell Mr Erikson about the invention of spillover at Cinpres and that he was ready to come clean. Mr Erikson’s evidence was that he told Mr Ladney what Mr Hendry had admitted and that Mr Ladney said that he knew that already but did not believe that he would leave at the end of his consultancy agreement and that he could be persuaded to stay. The next day Mr Ladney called Mr Erikson into his office and said that Mr Hendry had never said any such thing.[27]In the meantime the first proceedings had been started. The application for a patent was pending and Cinpres commenced proceedings under section 12 of the Patents Act 1977 seeking a determination that Mr Sayer was the inventor of the claims which covered the use of a spillover cavity and that the application should proceed in the name of Cinpres. Cinpres’s statement of case, dated 23rd January 1991, claimed that the spillover technique was developed by Mr Sayer and Mr Hendry was involved but only on an occasional basis, and that Mr Hendry would have been aware of the use of the spillover cavity in the Bell & Howell plinth. It also refers to a Cinpres manual which is said to have described the use of the spillover cavity. It says that Mr Hendry was involved in the drafting of this manual and that he received a copy after circulation.

The alleged lies by Mr Hendry leading up to the hearing in the first proceedings

[28]Mr Ladney was the respondent in those proceedings. The response to the Statement of Case was a “Counterstatement and affidavit of James W Hendry” dated 22nd March 1991. It was indeed sworn to by him. In that short document (10 short paragraphs) Mr Hendry stated that he believed that he was the first and sole inventor of the subject matter of the patent and that Mr Sayer was not. “I am not aware of the activities of the project mentioned in paragraph 17 of the Statement of Case.” That project was the plinth. This is the first of the statements which Mr Hendry now says to be untrue, and untrue to his knowledge. His affidavit in the present proceedings says it was made because of threats by Mr Ladney to sue if he mentioned the spillover work carried out at Cinpres. This does not make a lot of sense – the alleged threats are related to disclosing his involvement, not a requirement to give positive evidence. In his cross-examination Mr Hendry attributed his signing this allegedly false statement to his feelings towards Mr Jordan and Cinpres (he despised them), and because he felt that if he did not sign it he would not get any money owed to him by Mr Ladney in respect of a deal involving a Japanese concern called Asahi. He said that Mr Ladney had not threatened to sue him at this stage, then he withdrew that. Overall his evidence on that particular point betrayed some confusion.[29]Having left Mr Ladney, Mr Hendry then entered into consultancy arrangements with Ford. At some point after that Mr Ladney began to express concerns about his misusing confidential information and threatened to sue him. During this same period Mr Hendry said that Mr Ladney was asking him to return to work for him. In 1992 Mr Hendry developed cancer of the prostate, and he feared it was terminal. He claims that during this time Mr Ladney was harassing him with complaints about misuse of confidential information. Eventually, on 1st May 1992 proceedings were issued in Michigan. They took the form of a claim by Milad, which sued as assignee of the benefit of various agreements between Mr Hendry and Mr Ladney, including his consultancy agreement. It complained of a number of things, including the wrongful disclosure of confidential information and:
“ … failing to cooperate in executing papers and providing evidence necessary to secure patent rights in the spillover invention in the United Kingdom Patent Office … and by threatening to cooperate with Cinpres Ltd.”
A damages claim of $1m was made, and injunctive relief claimed. On 26th May 1992 Milad obtained interim injunctive relief restraining the misuse of confidential information and cooperation with Cinpres in connection with the spillover invention, but it was subsequently discharged on the basis of inadequate evidence. Mr Hendry instructed an attorney called Mr Valentine in this litigation.[30]On the same day as those proceedings were started (1st May 1992) Mr Ladney swore an affidavit in the first proceedings in the Patent Office. In it he explained that Mr Hendry was terminally ill and claimed that the invention was his. The apparent purpose of this was to give hearsay evidence of Mr Hendry’s denials that Mr Sayer was the inventor, presumably on the footing that Mr Hendry could not give that evidence.[31]Mr Hendry claimed that he was much oppressed by these US proceedings, and I find that they were an onerous thing to face. He also professed a keen desire to settle them. I am sure he would have wanted to get them settled, but there was some limited correspondence which tended to demonstrate that he was not as anxious as all that. During the course of those proceedings an order was made restraining Mr Ladney and Milad from making direct contact with Mr Hendry. His witness statement says he was under financial pressure. I am satisfied that this was the case. He and his wife were both ill, and medical bills were very significant. Mr Hendry had a pacemaker fitted in January 1993. He also had to support one of his sons, who was also sick. His house had to be sold. He complained that Mr Ladney continued to harass him, threatening to ruin him if he were to confess that he had invented spillover while at Cinpres.[32]Those proceedings were ultimately settled in 1993, but before that Mr Hendry gave more evidence intended for the first proceedings and some of which he now says was false. Mr Ladney’s lawyers were concerned that Mr Hendry’s health was such that he would not survive to provide evidence at a future hearing in the Patent Office in those proceedings. They considered that they needed to preserve his testimony. To that end they arranged for him to be examined under oath in Florida. That examination took place on 8th February 1993. Mr Hendry’s evidence in his witness statement was that he was summoned to give that evidence. It transpired that that was wrong – he attended voluntarily. His witness statement also said that this event followed his re-employment with Mr Ladney. That too was wrong – he was re-engaged by Mr Ladney, but not until some months after this evidence was given.[33]On that occasion Mr Hendry was asked about the development of the spillover invention. He gave clear evidence to the effect that he did not associate language relating to an overflow pocket, as it appeared in the patent application, with wording in the Cinpres manual; that he did not have any recollection of the Bell & Howell plinth; and that he denied that any spillover work was done at Cinpres. He now asserts that all these statements were untrue, and known to him to be untrue at the time. His evidence in chief did not attribute any particular pressure or motivation for telling what he now says is a lie about this, though he did say that during the period of this litigation Mr Ladney kept harassing him, and when he (Mr Hendry) threatened to confess that spillover technology was devised at Cinpres, Mr Ladney said that if he did he would ruin him; Mr Hendry said he believed him about this.[34]In May 1993 there was a mediation with a view to settling the litigation. In June 1993 it was indeed settled, and shortly thereafter Mr Hendry entered into another consultancy agreement with Mr Ladney. In his third affidavit Mr Hendry said that he felt he had no choice but to enter into another agreement with Mr Ladney in order to put a stop to the litigation, and in his first affidavit he said that he had no choice about entering into the consultancy agreement because he needed the money.[35]On 22nd October 1993 there was a further examination under oath of Mr Hendry in relation to the first proceedings. In an affidavit sworn in the first proceedings on 21st December 1993 Mr Hendry confirmed the correctness of the answers that he gave on this occasion. This time he was cross-examined by Mr Bayliss of Messrs Boult Wade Tennant, patent agents acting for Cinpres. In substance this was a cross-examination on the evidence given in February. Mr Hendry claimed that before this examination Mr Ladney reminded him of the need to be loyal to him as his employer, and that he should restrict his answers to “yes” or “no” and to say “I don’t remember” if an explanation was called for. Whether or not this was said, the transcript demonstrates that Mr Hendry did not do this. He gave much fuller answers. In the course of this sworn evidence Mr Hendry denied talking to Mr Sayer about overflow wells, denied any recollection of the plinth or discussing it with Mr Sayer, and again denied any relationship between the wording of the manual and the overspill technology. He now says that these particular answers were wrong, and were known by him to have been wrong at the time. The thrust of his evidence was that he did this because Mr Ladney required total co-operation in the first proceedings and Mr Hendry felt he would be sued if he did not say what was required. Also, by this time Mr Hendry was engaged as a consultant again. There is a generalised statement in his witness statement (generalised in the sense that it appears to apply generally and not to this particular occasion) that Mr Ladney was “always nearby when I was giving oral evidence … He would constantly remind me who was putting bread on my table. I simply could not afford to resist if he sued me. I felt I could not allow that to happen, not only for my own sake but for my wife’s and my children’s.” This evidence given in October 1993 was not admitted as part of the evidence by Dr Ferdinando. It therefore does not form part of the alleged perjury on which the decision in the first proceedings is said to be founded.[36]The next alleged act of perjury is an affidavit sworn for the purposes of the first proceedings on 6th October 1994. In his affidavit in the present proceedings Mr Hendry makes significant errors about the genesis of this statement. He says it was written for him by lawyers at Brooks & Kushman. In fact it appears that it was drafted by Mr Benson, a partner in Needham & Grant (solicitors acting for Mr Ladney in the first proceedings). That of itself may be of little significance. However, he also says (in the context of this affidavit) that he was asked to comment on various matters which were not really within his expertise, and:
“I was asked to be as definite as possible in relation to this evidence. Throughout the case I was asked to ‘harden up’ or ‘firm up’ my evidence by Michael Ladney and his lawyers. Consequently, I once again denied all knowledge of the Bell & Howell plinth.”
In his cross-examination he retracted the allegation that he had been asked to do such things by the lawyers, and said it was merely by Mr Ladney. The picture given by this important paragraph of his witness statement thus changes. As drafted, and as confirmed at the beginning of his evidence, it presented a picture of Mr Ladney’s lawyers drafting documents for him containing matters outside the scope of his expertise, and then inviting him to firm up his evidence. The picture ultimately presented is different - this affidavit was prepared by different lawyers and no lawyer ever invited him to improve his evidence in that way. A mistake as to who drafted a particular affidavit would say little one way or the other about Mr Hendry’s credibility. The change of thrust of this particular paragraph says rather more against it.[37]This affidavit contains further material which Mr Hendry now admits was, to his knowledge, wrong: i) It again denied knowledge of the plinth. Mr Hendry in fact knew about it. ii) It denied that the wording in the manual was sufficient to disclose the invention. Mr Hendry accepted that it was clear enough for it to be applied by a skilled person and with a little trial and error he, as a skilled person, could have made the process described in those words work. iii) He gave evidence about the use of terminology (“cold slug wells” and “slug well”) that he did not necessarily believe to be true. He says that he told Mr Ladney that he thought they were on shaky ground there, but was told to “shut up, that he [ie Mr Ladney] had a lot of money invested and ‘this is the way it’s going to be’”. iv) He denied that Mr Sayer ever consulted or discussed with him, or involved him with, the Bell & Howell mould and the steps which Mr Sayer claimed he took in making an overflow well. He now accepts that Mr Sayer worked with him by assisting in the initial trials of the mould. v) He described the process of making the Baretta door. He maintains the accuracy of what he said about the later stages, but begins by stating how he came to make his invention, and then goes on to describe events in the context of the door. It gives the clear impression that all inventive steps were taken in connection with that door. That is now said to be false – he says these matters were discovered at Cinpres.[38]Again, no specific allegations of pressure placed on him by Mr Ladney are made in relation to this affidavit, save for those referred to above in relation to wells so far as pressure is implicit in this. Mr Hendry seems to rely on the more generalised allegations to which I have referred.[39]Next there was an affidavit sworn on 14th November 1995 in the first proceedings. This was drafted for him, in order to provide a comprehensive “sweep up” of the remaining issues. Mr Hendry says it contained definitive statements of belief in relation to the occurrence or non-occurrence of conversations or situations which were either incorrect or which he could not remember whether they were true or not. He says he was being asked to “harden up” his evidence (we now know this means by Mr Ladney, and not by the lawyers) to add weight to the case and felt he was in no position to resist the “requests” being made of him. He says:
“There was always the threat of litigation hanging over me and Michael Ladney said ‘if you lose me this case I am going to have to recoup it.”
When Mr Hendry said here was not much left Mr Ladney said “I’ll get everything you’ve got.” His witness statement strongly suggests that this was said in the context of the provision of this affidavit. In his cross-examination Mr Hendry said that in fact it was said in the Hilton Hotel in London just before the Patent Office hearing, and he supported that with some more detail of the circumstances.[40]This affidavit contained the following statements which Mr Hendry now says are untrue and which he knew to be untrue at the time: i) It says that he invented the overflow process 2 years after he left Cinpres, whereas in fact he made it while at Cinpres. ii) It once again denies knowledge of or involvement in the Bell & Howell plinth. iii) The affidavit comments on the expertise of Mr Terry Pearson who was at the time a salesman at Cinpres and who had provided a witness statement in the first proceedings. Mr Hendry now says that these comments were unfair in that they downplay his expertise on the technical side.

The hearing of the dispute in the first proceedings

[41]The first proceedings culminated in a hearing before a hearing officer (Dr P Ferdinando) between 5th and 12th February 1996. Mr Hendry was cross-examined and maintained his position as to the manner of his acquisition of knowledge and experience of spillover technology. The decision was delivered on 22nd May 1996. Dr Ferdinando complained, with some justification, about the “undisciplined mass” of evidence. It comprised a large number of affidavits, witness statements and statutory declarations from a large number of deponents. Attempts were made to get in the pre-trial examination of Mr Hendry (in the form referred to above) and of other witnesses. Dr Ferdinando let in all witness statements, affidavits and declarations, but declined to let in the transcripts of what he called the cross-examinations. He did, however, allow in Mr Hendry’s examination of February 1993.[42]On the key issue of Mr Hendry’s knowledge of and deployment of the use of overflow pockets or runners, Dr Ferdinando found the following: i) He described the process of Mr Sayer blocking runners experimentally to make plastic flows meet at only one point. ii) He described a modification made partially to unblock one runner so it could serve as an overflow, thereby apparently eliminating sink marks. This is the process which the referrers in the proceedings (essentially Cinpres) said constituted the invention said to be claimed in the application in suit. He found that Mr Sayer did this modification (on pages 18 and 20). iii) He found (or proceeded on the basis that) the process developed by Mr Sayer (as he put it), initially on the Bell & Howell plinth, effectively anticipated the invention claimed in claims 1 and 2 of the application in suit (as filed). iv) He then turned to the issue of “whether Mr Hendry was aware of the B&H process and the use of overflows while he was with the referrers, either as a contributor to its development or by hearing from Mr Sayer or others”. v) He identified the evidential poles on that point - Mr Hendry vehemently denied involvement, and Cinpres stated that despite no person having an actual recollection of participation, it was inconceivable he would not have known, given his position within the organisation. vi) He noted Mr Sayer’s general practice of disclosing developments to Mr Hendry (which he considered to be the substance of Mr Sayer’s evidence on the point), supported by Mr Hendry’s apparent support of that as a general proposition, and contrasted it with Mr Hendry’s “confident and constant assertion” that it did not happen in this particular case. vii) He found Mr Sayer’s evidence to be unpersuasive in that regard. He thought that Mr Sayer was merely presuming that he had told Mr Hendry, and that more specific and focused evidence was required to show knowledge on the part of Mr Hendry. viii) Having considered various evidential matters going to support or detract from the respective cases of the parties, he concluded that Cinpres had not established that on the balance of probabilities Mr Hendry had become aware of the use of overflow runners to facilitate the penetration of gas into the mould prior to his leaving Cinpres. Cinpres therefore failed.[43]It is quite apparent from the decision that Mr Hendry’s denials of knowledge were central to the decision. There can be no doubt that his evidence in this respect was material to the decision on the point. Those denials are those appearing in the affidavits referred to above, and the transcript of his evidence reveals that the relevant matters were repeated in evidence in chief and cross-examination. Thus he repeated that he did not come across the overspill well idea when at Cinpres, that nothing at Cinpres contributed to his later ideas about it, that he was not told about it by Mr Sayer, that he did not work on it, and that the sentence in the manual which Cinpres said referred to it would not be taken as doing so by a skilled man. Had Mr Hendry given the evidence about all this that he gave to me, and if that were taken as being truthful, then it is inevitable that the decision on the question of where Mr Hendry was when overspill wells occurred to him would have been different – there would have been a finding that it happened at Cinpres.[44]During the hearing in the Patent Office an event occurred relating to Mr Erikson to which considerable attention was paid at the hearing before me. During the hearing it became known to Cinpres’ team that Mr Erikson had some evidence to give which was apparently going to support their case on the knowledge point. Mr Erikson would not say what it was, but was prepared to come to England from the US to give the evidence. Cinpres was prepared to pay his expenses to come here to do that. Mr Wyand QC, then appearing for Cinpres, alerted the tribunal to the possibility of an additional witness at the beginning of the second day of the hearing. Mr Ladney’s team expressed the concern that Mr Erikson might be going to divulge confidential and privileged information, and objected to his giving evidence. A short note was provided to them of the nature of the evidence that it was believed he would give but that did not reassure them. Mr Ladney’s team contacted Mr Erikson to find out what he would say, but they still professed themselves to be dissatisfied. They indicated that they would make an application to the court about their concerns. They then made an after-hours telephone application to Jacob J for an injunction restraining the disclosure of confidential information. The injunction was granted, though apparently the judge expressed the view or concern that it should not prevent Mr Erikson giving evidence. The application was made by Melea, apparently as assignee from Milad of the benefit of Mr Erikson’s former contract of employment. Mr Erikson was given notice of the injunction by faxed communication. Despite the fact that nothing in the injunction would have prevented him from giving evidence to the tribunal (and certainly it would not have prevented him from giving evidence of the nature of the evidence which he gave to me) he declined to come over after all. The fate of those proceedings is uncertain. Apparently practically all the relevant papers are unavailable, apart from limited correspondence with Mr Erikson about the injunction, and even the court file has been misplaced. There is no evidence of what happened to the proceedings after the initial without notice injunction. There may have been an attempt at an inter partes hearing, but there was no evidence of anything after that. Mr Erikson did not know of anything that happened after the initial injunction; he told me he kept his head down in the US and hoped the case would go away. It seems to me to be likely that Melea and Mr Ladney thought that nothing more needed to be done once it had become apparent that Mr Erikson would not be coming to give evidence after all and they did not pursue the proceedings thereafter.[45]Mr Cantor attended the hearing in the Patent Office and participated in the discussions. He, and Mr Ladney, were cross-examined at some length about the reasons for seeking an injunction against Mr Erikson. The real motivation for obtaining this injunction formed a very significant part of Cinpres’s case before me. The essence of its point was that Mr Ladney believed and feared that Mr Erikson would give truthful evidence which would damage his case and tried to head him off with the injunction – that he would “spill the beans” (Mr Prescott’s words) about the origin of the spillover invention. Having heard all the evidence on the point I think that this application for an injunction was probably an over-reaction to fears of what Mr Erikson might do, but was not attributable to a desire to suppress an uncomfortable truth. At one stage before he left Mr Ladney’s employment Mr Erikson had been involved in discussions about the case as part of the litigation team, and Mr Cantor told me (and I accept) that there were concerns about that. He had also been privy to other commercial confidential information, and it was suggested that he might impart that. That is less convincing – Mr Erikson had not been part of Mr Ladney’s organisation for some time before this and Mr Ladney had never bothered to seek restraints before 1996. Discussions about evidence relevant to the Patent Office hearing would not be a likely forum for disclosure of such information. Nevertheless, I think that over-reaction rather than illegitimate suppression is the more likely explanation for several reasons. First, I accept the evidence of Melea’s witnesses on the point. Second, in practical terms suppression would require a form of conspiracy between Mr Ladney and at least Mr Cantor, and I do not think that likely. Third, I do not see how they could have reasonably thought it would work. If the intention was to suppress the material about discussions with Mr Hendry and Mr Ladney of the nature of which Mr Erikson gave evidence to me, an injunction restraining the misuse of confidential information would not prevent disclosure of that material as would have been apparent when Mr Erikson got here and spoke to Cinpres’s lawyers. It cannot have been sensibly predicted that the injunction would have the effect that Mr Erikson would be headed off from even getting on the plane. Accordingly, I do not consider that this episode has the evidential and probative significance attributed to it by Cinpres.[46]Mr Hendry sought to explain why it was he gave false oral evidence at the hearing. He said that immediately before the hearing he had had something approaching a breakdown due to the stress he felt. He knew that he was going to have tell lies on oath if he were not to incur the wrath of Mr Ladney, and “as usual” before the hearing he was reminded by Mr Ladney of his duty of loyalty and of the need for it to be a priority. Mr Ladney was present at the hearing and Mr Hendry was aware of his presence (there was some equivocation as to quite where the former was sitting) and he felt he could not respond adversely to Mr Ladney bearing in mind the pressure which he was under and the threat that he said he felt from him (presumably the threat of litigation and the loss of income, though that it is not articulated at the relevant part of his witness statement). In addition, on the evening of the 8th February 1996, when Mr Hendry had started but not yet finished his evidence, Mr Ladney rang Mr Hendry at his hotel and criticised the verbosity of his performance. Mr Ladney is said to have reminded Mr Hendry of the fact that spillover belonged to him (Mr Ladney) and that if he lost the case then Mr Hendry had “a problem”. Mr Hendry said he told Mr Cantor of this, and Mr Cantor told him to forget it and he was doing fine. Mr Cantor denied this conversation. In his cross-examination Mr Hendry also relied on the incident in the Hilton Hotel as being part of the pressure put on him before giving evidence in the Patent Office hearing – see above. In addition, he claimed to be motivated by strong distaste towards Mr Jordan, Cinpres and other Cinpres personnel and he wanted to spite them over what he regarded as poor treatment at their hands in the past. He used the words “revenge” and “greed” as being his motivation, the greed being increasing the chances of his getting the money that he considered that Mr Ladney owed him since 1992.[47]Mr Cantor gave evidence that he spent a lot of time with Mr Hendry during the period of the Patent Office hearing, and had spent significant time with him over the years leading up to it, having participated in the previous evidential stages. He gave evidence as to the clear way Mr Hendry went about providing evidence and information. There was no suggestion of fabrication in his demeanour or in the manner in which he went about his activities, and during the out of hours time during the period of the Patent Office hearing (many of which were spent with Mr Hendry) Mr Hendry gave no indication that he was under any form of pressure, or that he was doing anything other than telling the truth as he saw it. His partner Mr Syrowik gave similar evidence (by video-link) in relation to the earlier period of evidence gathering and presentation. Mr Tuttle gave evidence of a number of assertions made by Mr Hendry over the years which positively asserted that spillover belonged to Mr Ladney.

Events after the Patent Office decision prior to Mr Hendry’s recantation

[48]Cinpres appealed the decision of the Patent Office. On 19th November 1996 Laddie J allowed the appeal. He considered that the Supertintending Examiner had failed to give proper weight to unchallenged evidence and looked again at the evidence to determine whether on the balance of probabilities Cinpres did disclose the spillover idea to Mr Hendry. He concluded that it did. On 23rd July 1997 the Court of Appeal, while being less than confident that it would itself have arrived at the same decision had it been hearing the evidence at first instance, reversed Laddie J and restored the original decision on the footing that Dr Ferdinando did not fall into the error identified by Laddie J and had material before him which could justify the decision at which he arrived.[49]After the Patent Office hearing, Cinpres sued Mr Hendry in Florida for misusing confidential information. Mr Ladney supported Mr Hendry by paying his costs of these proceedings. The action was apparently started over a patent which is nothing to do with the patent in suit, but after success before Laddie J Cinpres added a claim in relation to that patent. It was eventually settled, but during the course of it Mr Hendry gave a deposition during which he was asked about certain aspects of the history behind the present claim. In it he denied that he had taken confidential information with him, the confidential information being the spillover invention. He now says this was a lie – he in fact took the information with him. He also spoke in a complimentary fashion of Mr Ladney’s help over his illnesses.

The process leading to Mr Hendry’s recantation

[50]Mr Hendry had known Mr Terry Pearson for some years. Mr Pearson had had a senior sales role at Cinpres in the 1980s. By the end of the 1990s Mr Pearson had acquired his own company operating in a related field, Gas Injection Ltd. On 22nd April 1999 Mr Hendry signed a consultancy agreement with this company for a monthly payment of $2,000. He had limited means and substantial medical expenses. At the same time, his consultancy agreement with Mr Ladney, which had been renewed in 1996 for 3 years, expired.[51]Mr Hendry’s account of how he came to let Cinpres know that he had lied in the previous proceedings was somewhat confused in its detail. In the summer of 2001 he met Mr Pearson at a hotel near Manchester airport. He told him that had worked on spillover at Cinpres. Mr Hendry understood that Mr Pearson had his own difficulties with Mr Ladney. Mr Hendry told me that Mr Pearson had said that there was no need to be concerned about it because he was going to achieve a commercial solution with Mr Ladney. In late summer Gas Injection Ltd and Cinpres merged, and Mr Pearson became chairman of the new company.[52]They had at least one other discussion about it, probably at Mr Pearson’s home. At some point Mr Pearson told him that he should take legal advice about whether to say anything more, and in December 2002 he took advice from Eversheds. They advised him firmly to say nothing more about it. He told Mr Pearson about this. Despite that the matter weighed heavily on him. He took advice from another US attorney (Mr Ron Owen) who was also a Methodist minister. The latter said it was time to put his cards on the table. In 2002 he met Mr Tuttle at a plastics conference, during which Mr Tuttle allegedly said that Mr Ladney just hoped to live another three years so that he could hurt people. Mr Hendry said that this was a major contributing factor to his decision to confess to Cinpres. He wanted the record put straight. In 2003 he perceived that Mr Ladney had started suing people again, and he said he wants the lawsuits to come to an end.[53]Mr Pearson confirmed much of this as a matter of timing. The consultancy agreement with his company is not disputed. He accepted that he had a meeting with Mr Hendry in the summer of 2001 at which Mr Hendry said he had worked on overspill technology at Cinpres, but it was a later conversation at his home in Wales in 2002 that he remembered more. On that occasion Mr Hendry had said that the testimony he had given in the Patent Office was not true, and that he had developed overspill wells at Cinpres. Mr Hendry said that he did not want Cinpres to continue to be damaged by his testimony. At the time of giving evidence he had been under considerable pressure from Mr Ladney. Mr Pearson reported this to Mr Jordan. Together they realised the situation was potentially serious for Mr Hendry and required careful handling. They told him to take independent advice, and Mr Hendry reported to them that he had been advised not to say anything more about it. Then Mr Hendry changed his mind about that.[54]During this time Mr Hendry was renegotiating his terms with Mr Pearson. It is necessary to consider his consultancies at this time because they are said by Melea to provide a motivation for his change of story on inventorship which is different from that which Mr Hendry puts forward. I have already referred to the fact that he entered into a consultancy with Gas Injection Ltd (Mr Pearson’s company). In the summer of 2001 Mr Pearson was negotiating a merger with Cinpres. This merger was consummated on 1st September 2001. It was in negotiation for some months before then. On the same date (1st September) Mr Hendry entered into a consultancy contract with Cinpres. This effectively replaced his contract with Gas Injection Ltd. His remuneration became $3,000 per month, and the agreement contained a clause preventing him from working concurrently for competitors providing competing services, and it expressly referred to Mr Ladney, Melea and Plastic Molded Technologies Inc as being forbidden employers. This agreement was for a minimum of 2 years, terminable by Cinpres on 6 months notice thereafter. On 22nd August 2002 it was extended by 12 months to 31st August 2004; on 15th April 2003 it was extended to 31st August 2006. The terms themselves were changed by a letter dated 23rd September 2003. The changes included an obligation to reside near CGI’s factory in Cheshire for at least 50% of the time. His remuneration was increased to a minimum of $7,950 per month, and he received a one-off consultancy fee of $25,000 to cover certain specified advice and assistance. Certain benefits continued for the benefit of his wife after his death. This document materially improved his terms.[55]These new terms were apparently preceded by a summary dated 7th July 2003, prepared by Mr Pearson and apparently addressed to Mr Hendry, which summarised precursors of the new terms. This is the same date as documents recording discussions about Mr Hendry’s evidence which apparently took place between Mr Hendry and Mr Pearson. Mr Pearson generated a document which clearly anticipates that Mr Hendry would be giving evidence and which relates to that evidence. These documents are set out in detail below. It is said by Mr Purvis that this documentation reflects on the motives of Mr Hendry for recanting and for deciding to support Cinpres’s case on where spillover was first encountered or conceived by Mr Hendry.

These proceedings

[56]Publication of the grant of the patent in suit was on 4th July 2001. On 30th June 2003 Cinpres started proceedings in the Patent Office under section 37 of the 1997 Act, claiming it was entitled to the patent. The relevant parts of that section read as follows:
“(1) After a patent has been granted for an invention any person having or claiming a proprietary interest in or under the patent may refer to the comptroller the question – (a) who is or are the true proprietor or proprietors of the patent; (b) whether the patent should have been granted to the person or persons to whom it was granted; (c) whether any right in or under the patent should be transferred or granted to any other person or persons; And the comptroller shall determine the question and make such order as he thinks fit to give effect to the determination. (2) Without prejudice to the generality of subsection (1) above, an order under that subsection may contain provision – (a) directing that the person by whom the reference is made under that subsection shall be included (whether or not to the exclusion of any other person) among the persons registered as proprietors of the patent; (b) directing the registration of a transaction, instrument or event by virtue of which that person has acquired any right in or under the patent; (c) granting any licence or other right in or under the patent; (d) directing the proprietor of the patent or any person having any right in or under the patent to do anything specified in the order as necessary to carry out the other provisions of the order. ………. (8) If it appears to the comptroller on a reference under subsection (1) above that the question referred to him would more properly be determined by the court, he may decline to deal with it and, without prejudice to the court’s jurisdiction to determine any such question and make a declaration, or any declaratory jurisdiction of the court in Scotland, the court shall have jurisdiction to do so. (9) The court shall not in the exercise of any such declaratory jurisdiction determine a question whether a patent was granted to a person not entitled to be granted the patent if the proceedings in which the jurisdiction is invoked were commenced after the end of the period of two years beginning with the date of the grant of the patent, unless it is shown that any person registered as a proprietor of the patent knew at the time of the grant or, as the case may be, of the transfer of the patent to him that he was not entitled to the patent”
[57]On 5th November 2003 The Patent Office declined to hear the case and stated that the High Court should hear it, under the provisions of 37(8). These proceedings were duly commenced on 27th November 2003.

Part V - The principal issues arising in these proceedings

[58]I have set out the nature of the claim made in these proceedings. The claim has, of course, been decided already in the first proceedings, so logically the first question is whether the estoppel arising out of those proceedings determines this claim against Cinpres. It is common ground that unless there is a basis for holding otherwise, the decision in the first proceedings operates to estop Cinpres from making its claim in these proceedings. Cinpres’s answer to that is that the perjury of Mr Hendry in the first proceedings, coupled with Mr Ladney’s procuring it, or taking advantage of it, means that the estoppel does not operate. Having thus disposed of the earlier proceedings, Cinpres then says that the facts justify its claim in these proceedings.[59]The law in relation to the effect of the earlier proceedings, and what is necessary to remove that effect, was not in dispute between the parties. These proceedings are not proceedings to set aside the earlier decision in the first proceedings as a prelude to the hearing of an entitlement dispute. Instead, these proceedings go straight to the heart of the matter by claiming the patent. The perjury is relied on not as requiring a setting aside of the earlier decision, but as a way of disposing of the estoppel that would otherwise arise out of that earlier decision. Authority indicates that the fact that an earlier judgment was obtained by fraud (which for these purposes includes perjury) is a reason for holding that the estoppel arising out of the earlier judgment does not apply (if the relevant conditions are fulfilled). There is no dispute as to that.[60]Mr Purvis did not take any point on that approach. He accepted that if this action establishes that the earlier decision was procured by perjury within the relevant test, then that decision is no bar to this court determining that Cinpres is after all entitled to the patent or an interest in it, and it does not matter that the earlier decision is not set aside. The person with the benefit of the earlier decision (Mr Ladney) is not a party to these proceedings. No point is taken on the fact that Melea, and not Mr Ladney, is the owner of the patent. It is accepted that if Mr Ladney’s entitlement was impeachable, then so is Melea’s.[61]Nor was there any dispute about the test to be applied for the purposes of determining whether the earlier decision still binds or is impeachable as a result of perjury. It is not enough that there was perjury. The perjury has to be that of the party for whose benefit it operated, or that party has to have knowingly relied on it. The test is set out in Oddysey Re (London) Ltd v OIC Run-Off Ltd [2000] EWCA Civ 71:
“The rule on which this court acted in Boswell v Coaks, which I have held to continue to be the law, is that the fraud or perjury must be that of the party himself, or at least be suborned by or knowingly relied on by that party.”
[62]That is the test that I shall apply. The perjury, if there was perjury, was not that of Mr Ladney “the party himself”), so if it is to affect the decision in the first proceedings it must be established that Mr Ladney suborned Mr Hendry (or procured the perjury) or that he knowingly relied on it. If Mr Ladney did actually pressurise Mr Hendry with a view to getting him to give perjured evidence, then he is clearly within the first of those alternatives. If he did not, then on Cinpres’s case he might still fall within the second part as knowingly taking the benefit of it.[63]The main issues in these proceedings are therefore as follows: i) Was the decision in the first proceedings procured by Mr Hendry’s perjury? This involves considering the questions arising in issues (ii) and (iii). ii) Did Mr Hendry make the invention in 1985? If so, he perjured himself. Alternatively, if he did not make the invention himself, did he find out about it during the course of his engagement with Cinpres? Again, if so, he perjured himself. I should record that Mr Purvis disputed that the alternative issue arose. He pointed out that the pleaded case was that Mr Hendry was actually the inventor, and Mr Hendry’s current evidence was to the same effect and not that he was told by Mr Sayer what the latter had discovered. I shall, however, treat the issue as arising. iii) If there was perjury, was it material to the decision? There can be (and indeed was) little dispute about this. His evidence was clearly central to the decision of the Examiner. iv) If the answer to either of the alternatives to question (ii) is Yes, and if the answer to (iii) is Yes, did Mr Ladney bring about the perjury by virtue of his pressure on Mr Hendry, or if not did he nonetheless know about it and take advantage of it, for the purposes of the first proceedings? v) If the decision in the first proceedings does not determine the fate of these proceedings, is Cinpres entitled to the benefit of the patent? This takes one back to the factual issues in (ii).[64]One or two things that were in issue on the pleadings turned out not to be effective issues in the case. The main one of these was limitation. At one stage it seemed that there would be a limitation point. Cinpres’s skeleton argument went to some lengths to identify the cause of action sued on and to justify an argument that the Limitation Act 1980 did not apply to it. Section 32 of that act was deployed, and was the basis of a disclosure application made at the beginning of the trial to acquire documents which went to the relationship between Mr Ladney and Melea. However, by the time of final speeches Mr Purvis accepted that in substance there was no limitation point. He accepted that if the facts were sufficient to allow Cinpres to overcome the estoppel that would otherwise arise out of the first proceedings, and to have a claim to the patent, they would be sufficient to allow Cinpres to override such limitation defences as might otherwise exist, so limitation was not a point. The same applied to the time limit in section 37 of the 1977 Act. Accordingly Mr Purvis accepted there were no limitation points which could effectively arise.[65]There is also a point about the extent of such interest as Cinpres would have in the patent in suit were it to be able to establish a claim at all. The proceedings originally claimed only a joint interest. A claim for sole ownership was substituted by amendment. Melea takes the point that the evidence does not justify a sole ownership claim if there is any claim at all. It particularised this point during the trial. The evidential position at that point was such that it was not possible or practical to determine that point at this stage of the proceedings (assuming that Cinpres succeeds in establishing an interest at all), and if I find that Cinpres is entitled to an interest then the scope of that interest will be the subject of a further hearing. It is therefore not an issue that I need to deal with in this judgment.

Par VII - The witnesses

[66]This case turns to a large extent on the credibility of certain witnesses. My findings in that respect are as follows.

Mr Hendry

[67]Mr Hendry is now 84. He is now rather deaf and moves slowly. He is almost certainly not as sharp as he once was. However, there is no doubt that he is still reasonably mentally alert and, once any hearing problems were overcome, he was plainly able to understand the questions that were put to him and the position in which he now says he finds himself.[68]Mr Hendry gave much of his evidence clearly and sought to present as being frank. His main problem is, of course, that on his own admission he has previously lied on oath on a number of occasions. That by itself would be sufficient to require me to treat his present evidence with the greatest caution. However, his history does not stop there. His past demonstrates a number of occasions on which he has clearly lied in relation to legal proceedings: i) In proceedings in which he gave evidence in 1982 his CV was relevant, and in that context he put forward a version of his CV. It turned out to be untruthful in a material respect and he admitted as much at the time. Unfortunately he repeated the untruth in 1985. ii) During the course of the first proceedings, he provided a document to counsel which suggested that he would have advised Mr Jordan to patent the discovery made in relation to the plinth, but in evidence to me he admitted that that was wrong and went so far as to admit he was lying to counsel. iii) He admitted lying in the original Patent Office proceedings not only in relation to the events of 1985 but also as to an assertion that he did not have any Cinpres confidential information. iv) On the spur of the moment in evidence in the Patent Office proceedings he claimed to be a “born again Christian”, whereas he now denies that that was ever true. These, and other matters that came up in evidence, indicate to me that he is from time to time capable of giving both considered and deliberate false evidence (which is in fact an obvious proposition, bearing in mind that he must either have perjured himself in the earlier Patent Office proceedings or in these proceedings) and false evidence off the cuff when it suits him to do so in the course of being examined.[69]There are two other principal factors which cause me to have the grave reservations about his evidence and which go close to issues at the heart of these proceedings. The first concerns notebooks. Mr Hendry has said that he makes notes of his work in a notebook. That is not surprising, and it was not challenged. I am sure that somebody in his position would be likely to do that. He is obviously an inventive and creative man, and would want to have notes of such things as he inventively creates. In evidence before me he said that it is likely that he would have noted the discovery of the spillover technique in his notebook of 1985. He told me that he left his notebook or notebooks behind when he left Cinpres. He was cross-examined on the footing that his earlier account of events (in the Patent Office) is likely to have been correct because he would not have taken the risk of the discovery of his notebooks at Cinpres’ premises which, if his earlier evidence was perjured, would falsify it. He told me that he did not think that this was a serious risk because he would have expected the notebooks to have been produced by the time he put forward his story, and since they had not been he concluded that they could not be found, presumably because of chaotic record keeping at Cinpres.[70]When Mr Sayer gave evidence, I asked him about notebooks. He confirmed that Mr Hendry kept a notebook in which he jotted down things that were going on. However, he said that Mr Hendry kept his notebook with him at all times, even taking it home with him and taking it to the United States when he went there. Again, that is not surprising. I accept Mr Sayer’s evidence on this. The important fact that emerges from this is that the notebooks were Mr Hendry’s personal records, and I think it highly unlikely that he would have left them behind when he left Cinpres. I do not think he told me the truth when he said that they were. Those notebooks would doubtless have assisted one way or the other in relation to what happened in relation to the plinth. They have never been produced. Non-production cuts both ways in these proceedings. If Mr Hendry had still had them at the time he was giving his evidence, either previously or now, then they presumably would have supported either his former version of events or his present version, and one would have expected him to have produced them on one or other of those occasions. He has produced them on neither. However, the significant thing for present purposes is that I think that he did not tell the truth when he said that he had left them behind, and his evidence about them was another instance of his making matters up as he went along.[71]The second particular evidential factor is evidence going to the question of his growing feelings of what might be called his penitence in relation to his alleged perjury. He professed to having a dislike for Mr Ladney and his tactics. In particular, he professed to having a dislike for Mr Ladney’s propensity to resort to legal action in an aggressive manner. That sits ill with a suggestion that he made in a letter of 11th October 2000 when he encouraged Mr Ladney and Melea to take legal action against a Mr Loren, Mr Erikson and the latter’s company, and saying:
“At that time, Norm Loren & Erikson would be so weak that Melea could simply take all of their patents from them to simply stop this Melea suit”
He was there advocating the very tactic which he purported to deplore. More significantly, his evidence was that he started the process of confession in 2001 when he told Mr Pearson that he had worked on overspill at Cinpres. He said that Mr Pearson encouraged him not to worry about that because he (Mr Pearson) was going to do a deal with Mr Ladney. Having started on the process of confession, one would have thought that Mr Hendry, if he was being consistent, would no longer seek to adopt a position contrary to that which he now says is the truth. He told me that by 2002 he thought that Mr Ladney’s name “should be taken off the patent”. Despite that, in a letter dated 2nd May 2002, he wrote to Mr Tuttle saying:
“Mike needs to go after CGI [ie Cinpres] for spillover.” 72. In other words, he was advocating that Mr Ladney should assert his claims to spillover as against Cinpres. When asked how he came to write this, he said that since Mr Ladney’s name was on the patent, he was entitled to do that. His explanation was: “He owns it, so he can do that. I was not making a statement that I thought he should go after him. It just says he might need to go after Cinpres on the spillover….. “If he wants to protect his patent and get complete ownership, he will have to go back to the courts and get it.”
He was in fact unable to provide a sensible explanation for his writing this which is consistent with the position that he now adopts. It is plain to me that he was encouraging Mr Ladney to assert claims to spillover because his personal situation at the time meant that it suited him to do so. This demonstrates yet again that he is a man who is prepared to say what his immediate needs and preferences require him to say at the expense of the truth, should that be necessary.[72]Mr Hendry’s eye to his own financial interests, and his own self-interest regardless of his other obligations, is also demonstrated by events of recent years. On 1st September 2001 he signed a consultancy agreement with the claimant. As I have already recited, that agreement contained a provision under which he expressly agreed not to work for competitors, and Mr Ladney and Mr Ladney’s companies were explicitly identified as being among the competitors for whom he should not act. Despite that, on 22nd February 2002 he entered into a consultancy agreement with a Ladney company, namely Global Plastics Technology Inc. This was on its face a clear breach of his consultancy agreement. In February 2003 Mr Hendry wrote a handwritten note to Mr Tuttle commenting on the validity of a patent in relation to which Mr Pearson was himself an inventor. He admitted to me that Mr Tuttle must have been acting on behalf of Melea. Again, therefore, he was providing services to a forbidden competitor, and this time advising on a patent the practical beneficiary of which is probably Cinpres. There was other evidence that he was providing consultancy services for Mr Ladney in breach of the provisions of his engagement by the claimant. His explanation for this, or at least for some it, was that he had cleared it with Mr Pearson. Mr Hendry said that he was using it as a way of getting back from Mr Ladney money which he had been owed for many years (amounting to $200,000), and that Mr Pearson had indicated that this was all right. I do not accept that evidence. First, it does not make sense. Mr Hendry was being paid for his consultancy services, and was presumably being paid a proper value for those services. Accordingly, these activities were not a way of getting back historical debts owed by Mr Ladney (or by a Ladney company). Second, Mr Pearson denied consenting, and his denial is entirely plausible. I accept it. There is no reason why he should have agreed to these services. Third, there is in evidence a document purporting to be a transcript of a message left by Mr Hendry on Mr Tuttle’s telephone answering machine in which Mr Hendry acknowledges that if he were to provide a declaration for certain litigation being conducted by Mr Tuttle, then it would immediately get to Cinpres’s attorney, and thence get to Mr Pearson, who would fire him “within two minutes”. (The terms of this message are set out in detail below.) I accept that this document is a proper transcript of such a telephone conversation. It clearly demonstrates that Mr Hendry knew that, vis-à-vis the claimant, he ought not to have been doing what he was doing in providing services to Mr Ladney. This material demonstrates several things. First, it demonstrates that Mr Hendry seems to have had little hesitation in breaking a clear and obvious term of his consultancy contract. Second, it demonstrates that he actually knew he should not be doing it. Third, it probably demonstrates his need for money at the time, and his perceived need to do what was necessary in order to get it. Fourth, since this was happening at a time when he was on his evidence going through a period of penitence, behind which was presumably the desire to do the right thing by Cinpres, it calls into question the genuineness of his penitence and therefore his motive for confessing what he had done and seeking to put it right.[73]All this reinforces the view that I take, which is that Mr Hendry’s evidence on all relevant matters has to be treated with the greatest possible care. I conclude that on the main points I should hesitate long before accepting his evidence of fact on central matters in the absence of some corroboration, though I have to be careful about applying that when it comes to questions of his motivation for his recantation, because such subjective elements are not necessarily so susceptible of corroboration.

Mr Nelson

[74]Mr Nelson’s evidence-in-chief as to Mr Hendry’s apparent lack of familiarity with the spillover technique was at odds with what I find he told Ms McNeill earlier. He had no explanation for this difference. I do not think that I can place any real reliance on his evidence and do not do so.

Mr Jordan

[75]Mr Jordan was a careful and conscientious witness. It was a striking feature of his evidence that he did not seek to embellish or to construct convenient recollections when one knows from experience that other witnesses would not have resisted the temptation. He no longer has any axe to grind in relation to this matter. I have no hesitation in saying I can accept his evidence.

Mr Sayer

[76]Mr Sayer was another witness who impressed me with the care with which he went about giving his evidence. He was, of course, trying to remember important and detailed events which happened over 20 years ago (albeit that he has had the need and the occasion to try to recollect those events in the meantime). I do not consider that he sought in any way to embellish his evidence. I think that he has thought about events very carefully and was giving his evidence honestly and reliably. Inconsistencies between the evidence he gave to me and the evidence he gave in 1996, such as they were, can be put down to an understandable dimming of recollection. Subject to this, I think that Mr Sayer was an impressive and reliable witness.

Mr van der Muren

[77]Nothing in Mr van der Muren’s demeanour or style led me to believe he was anything other than a truthful witness doing his best to remember an event which took place some 15 years ago. It might be thought that the event was so insignificant that any normal person would have forgotten it. However, Mr van der Muren had a reason for remembering it – it occurred during his first trip for his employer. I do not think that he had any motive for, or propensity towards, fabrication. Accordingly, I do not think that he came all the way over here to lie to me. I can accept the broad thrust of his evidence on the question of whether Mr Hendry ever said anything to him about deploying spillover whilst he was at Cinpres, even if I do not accept every piece of detail.

Mr Erikson

[78]Mr Erikson had potentially important evidence to give. It was a form of corroboration of Mr Hendry’s evidence that he knew of and used spillover whilst at Cinpres, and it also went to corroborate Mr Hendry’s case that Mr Ladney knew of that. So far as the latter element is concerned, it was about the only piece of corroboration available. In the light of this, and since Cinpres placed a very heavy emphasis on the incident concerning Mr Erikson’s ultimate non-participation in the first proceedings, claiming that there was a deliberate attempt to suppress evidence which Mr Ladney knew would alter the course of those proceedings, it is necessary to examine Mr Erikson and his evidence with some care.[79]Unfortunately, Mr Erikson was a thoroughly unreliable witness. He gave a very unconvincing and implausible account of a conversation with Mr Jordan in about 1995 when he claims that he told Mr Jordan, in the course of a conversation at a trade show, that if called upon to give evidence he would tell the truth. He did not identify the particular matter about which he would give truthful evidence, and claimed this was a sort of generic statement, professing some form of reluctance to disclose specifically his discovery that Mr Hendry had apparently worked on spillover at Cinpres, his disclosure of that to Mr Ladney and Mr Ladney’s subsequent insistence that the conversation never happened. His account of this meeting made no real sense. Nor was his account of his involvement (or lack of involvement) in the 1996 proceedings a sensible one. He claimed that it was Mr Jordan who contacted him with a view to his giving evidence, and not the other way round. Yet he was unable to explain why it was that Mr Jordan, who was said by Mr Erikson to have made the contact in the middle of the hearing (which is when I find the contact to have been) should have left it so late to contact him, particularly when Mr Jordan would not have the foggiest idea of what evidence it was that Mr Erikson could give (because of Mr Erikson’s professed caginess at the previous meeting). He then said that Mr Jordan proposed a “meeting” at which Mr Erikson would “detail my knowledge of Mr Hendry and overflow wells at GAIN” (GAIN is a compendious title for Mr Ladney’s gas injection companies). When pressed on what the “meeting” was to be, he thought it would be some form of deposition. He professed not to know that he was going to have to give evidence at what was in substance a trial. This too was implausible. He went on to say, in cross-examination, that he was never told what arrangements had been made to fly him to England – he was never told when, where, or how to pick up his tickets and so on. He accepted that he was offered his air fare, but did not accept that he was offered any other expenses. In a deposition under oath in 1997, he stated that the reason that he did not fly over to give evidence in 1996 was because he was not offered his expenses. His present evidence is that the reason that he did not fly over was because of the injunction. I think the latter is right, which makes his evidence under oath in 1997 untrue. His former evidence was in terms that Mr Jordan “declined” to pay his expenses. The farthest he went in evidence before me was that he “declined by omission” because the expenses were not offered. In giving this evidence Mr Erikson was seeking to justify the unjustifiable. He plainly told an inaccurate story in 1997. Mr Jordan plainly had arranged his airline tickets, and he must have informed Mr Erikson of the travel arrangements. I accept Mr Jordan’s evidence about this. For some reason, in 1997 Mr Erikson did not want to state his real reason for not coming to this country to give evidence.[80]Of even greater significance for present purposes is his failure to give an account of the 1991 events in his deposition in 1997 which is consistent with what he now says happened. He was asked what Mr Hendry told him about spillover. He responded as follows:
“A. I asked him specifically about spillover. My question was, what is the situation with claims of somebody else saying they invented it. And my question was posed because I had read a published patent by Norm Loren on a similar technique that they termed ‘pin in the puddle’ where he talks about the use of a spillover in the text of the patent. And the date of the filing was – preceded the date of Hendry’s filing on these PC published [sic]. So they were available at the GAIN office and I read this patent applications that had been published. And I was curious as to here it is in the Loren and the date is before your date in this other one. And I was surprised to hear that his response to me was that Cinpres is not going to take that away from me. And I said ‘What do you mean, Cinpres?’ and he said clearly that it was his idea to put a spillover in a part. Q. Anything else on the subject of spillover, Mr Erikson? A. That was basically the text of the conversation. Q. Now segueing to the possibility of you going over to testify in the UK Patent Office, is that the sum and substance of what you would have testified to in the matter of spillover in the UK Patent Office? A. Yes.”
That account is lacking a lot of the detail in his subsequent statement. I do not think that the differences between that account and his present evidence is explicable in the manner which he proposed, which is that this was a deposition which he did not want to have to give and he decided to keep matters short. It also omits completely the fact that he went to tell Mr Ladney and Mr Ladney first said that he knew, and then later disavowed the prior conversation. Again, Mr Erikson sought to justify this omission on the basis that he was not asked a question about that, and he was not minded to volunteer information. I find it hard to accept that explanation. If true, it was such a striking matter that it would have been natural to make some reference to it in the deposition, no matter how reluctant Mr Erikson was to be there in the first place. So they were available at the GAIN office and I read this patent applications that had been published. And I was curious as to here it is in the Loren and the date is before your date in this other one. And I was surprised to hear that his response to me was that Cinpres is not going to take that away from me. And I said ‘What do you mean, Cinpres?’ and he said clearly that it was his idea to put a spillover in a part.[81]His evidence even called into question his own professed ethics. He told me that when he was approached recently to give evidence in these proceedings his attitude had evolved so that the reason was:
“It was sort of enough is enough, enough of all the litigation, enough of all the lies, enough of all this pox on this industry, and this court needs the truth so that it can render a just decision.”
However, shortly before he signed his witness statement in this action he was on holiday in Florida, and, as he put it “just as a lark” he rang Mr Ladney and asked him if he wanted to buy his business (which Mr Erikson has been trying to sell for some time). Mr Ladney refused his offer. Mr Erikson told me that if Mr Ladney had agreed to buy it, he probably would not have given evidence in this case. This does not demonstrate that, as Mr Purvis put it, he was prepared to sell his evidence to the highest bidder, but it does prevent him from putting himself forward as a seeker after justice and truth.[82]All these factors, and the way in which he coped (badly) with a large number of other inconsistencies and implausibilities in his evidence, leads me to give his evidence on the corroboration matters no real weight at all.

Mr Pearson

[83]Mr Pearson gave evidence to me of the events of recent years – principally the circumstances in which Mr Hendry came to confess his perjury, and the various contracts and variations of contracts under which Mr Hendry provided consultancy services to Gas Injection Limited and then to the claimant. He was in my view an honest witness, doing his best to assist the court, though from time to time he betrayed the not uncommon fault of trying to identify the point behind a question and to deal with that point rather than answering the question. At the end of the day this fault did not detract from the essential reliability and honesty of his evidence.

Mr Tuttle

[84]Mr Tuttle, who is a partner in Brooks & Kushman, patent attorneys who have for some time acted for Mr Ladney and those associated with him, was called to deal with a number of matters which, in the end, turned out to be uncontroversial. For example, his main witness statement was intended, in part, to correct certain impressions which the evidence of Mr Hendry had given. By the time he gave his evidence, either Mr Hendry had corrected those impressions himself or the corrections were apparently unchallenged. Part of his evidence was designed to reinforce evidence given by Mr Cantor that Mr Hendry had throughout the period of his dealings with Mr Tuttle (which were sporadic in the period between 1991 and the end of the 1990s) maintained a position consistent with the position that he had adopted in the first proceedings. So far as his evidence reflects that, then I accept that evidence. Mr Tuttle was in my view an extremely cagey witness, and he demonstrated an almost excessively cautious attitude towards the wording of his answers. However, that is perhaps to be expected of an experienced litigation attorney, which he is. Much of his cross-examination was intended to ascertain whether or not he had notes of any conversations that he had with Mr Hendry. He gave some evidence which, frankly, I found surprising as to his normal practice when dealing with witnesses or potential witnesses. He sought to give the impression that he did not tend to take notes of what might be important meetings, to an extent which I find extremely surprising in the case of an experienced litigation solicitor. He claimed to rely on his memory to an extent which I would regard as incautious. However, in the end I accept his evidence as to the absence of his notes of conversations with Mr Hendry. In the end there was nothing in the main body of his evidence which I felt unable to accept.[85]However, there is one extremely unattractive aspect of his evidence that I should deal with separately. At the end of his main witness statement, he sought to suggest that the solicitors acting for the claimant (Wragge & Co) were using Mr Hendry to make “statements against his better judgment” in a manner which suggested that they were actually pursuing some purpose other than a fair presentation of their client’s case. When cross-examined on this, his complaint seemed to be something else, namely that they had participated in the exercise of making an improper agreement with Mr Hendry to the effect that Mr Hendry would not give evidence for Mr Ladney. He claimed to spell this out of the consultancy agreement reached on 1st September 2001, when coupled with other documents. This assertion seems to me to be completely unsustainable and is based on a fundamental misreading of that document. Frankly, I do not see how a sensible lawyer can read the matter in the way that Mr Tuttle has read it, and were the point relevant to his evidence, I would have considered that his evidence in this respect raises a serious question mark over his judgment. In the event, it does not actually go to his credibility in relation to the points on which he was called to give admissible evidence. I raise the matter at this point in this judgment because he made serious allegations against Wragge & Co in the witness box and I think it right that I should record that there was absolutely no evidence to support such an allegation, which in my view ought not to have been made. It is fair to the defendant that I should record that this allegation formed no positive part of its case, and Mr Purvis did not advance it. It was basically a frolic of Mr Tuttle’s own.

Mr Ladney

[86]Mr Ladney is now 88. He gave evidence for over two days in aggregate. He seemed to be able to do so without apparently tiring or losing his focus – it was a surprisingly robust display. His evidence was generally measured and clear, though at times there were flashes which demonstrated some deep feelings on one or two issues. He is clearly still a clear-minded individual, and did not often demonstrate confusion.[87]He was not, however, a witness whose evidence I can treat as being necessarily safe and credible on material points. I am satisfied that on at least one point he was quite prepared deliberately to mislead the court. That point is the nature, genesis and operation of his “asset protection” scheme. At one time it was relevant to the extent to which it controlled and acted for Melea, which in turn went to a limitation point that was still live until the trial. The background was this.[88]In 1990 Mr Ladney faced the possibility of damages and civil penalties arising out of some environmental litigation. Against that background he set about divesting himself of valuable assets, principally his patent portfolio, to keep them from the reach of his creditors. For the initial stages of that purpose he went to the Cook Islands with an attorney who was devising and implementing the scheme for him, and that was apparently the first stage of the journey of the assets which ended with them going through Milad and ending in Melea. The details of the journey are unknown (or at least unknown to me). The shares in Melea are now held by something called the Port Royal Charitable Trust, for whom Mr Ladney was said (by his solicitors) to be a fiduciary (whatever that may mean – Mr Ladney did not seem to know). A Mr James Teasedale is the president of Melea; he is also Mr Ladney’s accountant. Mr Ladney professed ignorance as to how the scheme was intended to work, and as to how it did work, which is simply incredible. He sought to present a picture in which he simply signed away significant assets, generating several million dollars of income per year, to people and bodies over which he had no control and in respect of whom he did not know who the underlying principals were. His evidence would have me accept that what he basically got in exchange for this was an opportunity to earn an income of something over $100,000 a year, albeit that that opportunity was (on the face of the documents) precarious in that it depended on licences being granted by Milad and then Melea which could be terminated at will. He went to the Cook Islands in order to set up this scheme, yet he never seems to have asked how the scheme worked, or to receive an explanation either before or after it was put into operation. He constantly professed not to know what happened inside Melea and sought to present himself as someone who was in essence totally ignorant of Melea, its activities, its principals and its operations. This was the company which ended up with his valuable gas injection patents. His account of this was utterly incredible and I am quite satisfied that he knew how the scheme was intended to operate, he knew how he could still influence those who held his patents, and indeed that he does still influence them. On one occasion his guard was down and he gave what I regard as being a telling and truthful answer. In about 1992 a yacht was bought. In his evidence to me Mr Ladney said it cost $1.9m and was bought by Melea. Tellingly, he said that:
“It was a yacht that I had Melea buy. I asked Melea to purchase it. Melea purchased that yacht.”
In previous proceedings he had given a separate story as to how the yacht was bought. He had said that it was bought by Milad for a lesser sum of money, and subsequently purchased by Melea. I do not think it matters which of those stories is true in relation to the identity of the actual purchaser. What I think is significant is that he told me initially that he was the author of the project. His later evidence sought to backtrack from that, but it was not credible. I think that his constant professions of ignorance were deliberate attempts to mislead me. It causes me to approach the rest of his evidence with the greatest possible care.[89]There is a further matter which relates to something which is said to have arisen during the trial. I have referred above to the evidence given by Mr Nelson, and identified how his evidence in chief conflicts with what he had previously said to a solicitor about Mr Hendry’s apparent knowledge of spillover technology when he was working on the Baretta door. It was put to Mr Ladney that when Mr Nelson had finished giving evidence, he sat close to Mr Ladney in court and was heard to say words to the effect of:
“Why did you not say what I told you to say”…. “why did you not just blurt it out.”
He indicated to that he might have said words to the effect of the first of those quotes, before withdrawing that admission or partial admission. He then denied that he was in any way unsatisfied with the nature of the evidence given by Mr Nelson, though he went on to confirm that he probably did say something about blurting evidence out. There was no direct evidence given from anyone who overheard this conversation, but the matters were clearly put to Mr Ladney and, at least once if not twice in his evidence, not denied. Looking at his evidence overall I am satisfied that he did have some sort of conversation along the lines of the conversation that was put to him, and that that betokened some previous conversation in which he had somehow made it clear to Mr Nelson what he, Mr Ladney, expected of Mr Nelson. Contrary to what he sought to say to me, he was disappointed with the evidence that Mr Nelson gave. The way in which he approached this issue in the witness box is another matter which causes me to be vary wary of the quality of his evidence, and in this particular case this area is related to one of the central issues in this case, which is the extent to which Mr Ladney made clear to Mr Hendry his expectations as to the sort of evidence that he expected Mr Hendry to give in the earlier proceedings.[90]The effect of all this is that I cannot accept Mr Ladney as being clearly a witness of truth in relation to all matters germane to this case. Of course, that does not mean that he was untruthful about everything; a lot of his evidence can be accepted as being truthful. However, on important issues in this case I find myself having to approach his evidence with great caution.

Mr Cantor

[91]Mr Cantor is another attorney from Brooks & Kushman. He had considerable involvement with the earlier proceedings, and attended the hearing with Mr Ladney and Mr Hendry. He gave evidence that Mr Hendry never, in all their contacts, gave any indication that his evidence about the discovery of spillover was anything other than honest and accurate. He was an essentially credible witness who gave honest evidence, and who came over as less obviously suspicious of these proceedings than Mr Tuttle.

Ms McNeill

[92]She only gave evidence of a telephone conversation with Mr Nelson and of her attendance note of it. Her evidence was obviously reliable. Part VIII - The main factual issues Issue (ii) – was Mr Hendry the inventor of, or privy to, the invention?

Part VIII - The main factual issues

[93]The witnesses who gave evidence of the events of 1985 were Mr Hendry, Mr Sayer and Mr Jordan. Of those three, only the first gave direct evidence of relevant events. Mr Sayer’s evidence invites me to draw an inference from his usual practice and the relationship between him and Mr Hendry. Mr Jordan’s evidence does not directly put Mr Hendry at the machine for the events in question. Mr Hendry is the only person who gives positive evidence that he was actually involved. His evidence is obviously central to the question of what he knew and did at the time both because it goes to the perjury point and because it goes directly to entitlement to the patent.[94]Two main reasons are advanced for my not accepting Mr Hendry’s evidence on the point. The first is that it is inconsistent with what he firmly deposed to in the first proceedings, and the second is the existence of inconsistencies and unsatisfactory aspects of his evidence this time round. I shall take the points arising out of the first proceedings first. I therefore turn to that question.[95]This first point involves a consideration of whether he was telling the truth first time round, which inevitably takes one to the question of why he should now admit that he was not. For many years he denied knowing anything about the invention at Cinpres. In 2001 he started to say otherwise, and in the course of these proceedings he has now given what purports to be a full account of his knowledge of and involvement with the invention which is completely at odds with this and which involves a confession not merely of lying, but also of perjury. At first blush it is hard to see why a man would do that if he were not telling the truth. His present accounts amount to an admission against himself, and it is obviously urged on me that he would hardly be likely to be making up a story which not only casts him in a bad light but also demonstrates that he has been guilty of a criminal act. It is prima facie not likely that he would be lying about such things. It is therefore pertinent and useful to consider at this stage whether there was evidence from which a motive for lying this time round can be gleaned, and if so what its strength is.[96]Mr Purvis did not shrink from this motive point. He suggested that there was a motive, and that motive was Mr Hendry’s need for money. His first suggestion or acknowledgment that he had come across the spillover technology at Cinpres came in 2001, at about the same time as Gas Injection Ltd was going to merge with Cinpres. It is said that he desperately needed the money he was getting from his consultancy contract and sought to get himself into Cinpres’s good books by falsely acknowledging that he had not told the truth before. Thereafter he improved and developed his story in order to improve his terms until it took its final form. Mr Purvis suggests that Mr Hendry may not have thought that he would actually have to give evidence at the end of the day, but eventually was effectively trapped into so doing when litigation started and was not settled. He probably calculated that as an old man living outside the jurisdiction the chances of his being prosecuted were not great.[97]There is something in this case on motive. It is undoubtedly the case that Mr Hendry needed money during this period. As already appears above in the section on Mr Hendry’s credibility, in 2002 and 2003 he was working for Mr Ladney, contrary to the terms of his engagement with Cinpres. In May 2003 a crunch point came. He was about to be invited to sign a declaration in connection with his work and recognised that it was something that would come to the attention of Cinpres’s US attorney, and he would then be fired by Cinpres. The transcript records that he left a message on Mr Tuttle’s answering machine saying:
“… within 2 minutes they’re gonna fire me for sure and I really need that 3,000 bucks that they’re paying me – I mean, I just don’t know how the hell I’d get along if I didn’t get that coming in and ah, so it has another couple years practically to go and ah, not saying I won’t sign it, but I just – I’ll get fired for sure … I’ll think about it again over the weekend but Bob, I just, it’s impossible, it’s impossible for me to get myself fired. I just ah, I just can’t do it. I can’t plan on Mike doing anything for me …”
[98]This money was therefore very important to Mr Hendry. That must have been true for some time before then. Within a short period of time he had obtained materially improved terms (see above and below). There was no clear evidence as to when it was that Mr Hendry decided to go against his solicitors’ advice and come clean on his previous mis-statements. In his first statement in these proceedings (actually an affidavit) Mr Hendry put it in the first half of 2003, when he had spoken to Mr Owen. In cross-examination he sought to put it earlier, after Mr Tuttle’s remark at a conference in 2002. It seems to me to be unlikely that he had decided to come clean while he was still working for Mr Ladney, so it is likely to have been after May 2003.[99]The proceedings in the Patent Office were started on 30th June 2003. By this time Mr Hendry must have indicated his change of position. It is plain that at about this time he was talking to Mr Pearson about his evidence, and doing so in the context of a renegotiation of his terms. There is an undated typed document of Mr Pearson which is headed “J W Hendry – Updated Consultancy on EGM – External Gas Moulding”. External gas moulding was a technology which Cinpres were interested in developing, and in relation to which Mr Hendry had some useful input. The typed notes set out outline terms which are clearly the precursor to the terms finally agreed. They contain manuscript amendments which were apparently added at a meeting. At the foot of the document is some manuscript in Mr Pearson’s handwriting which reads as follows: “ - If questioned – Explanations of Help on Spillover are – - a priority for JWH [Mr Hendry] is to keep CGI in business so that EGM can flourish JWH has no further income. - A matter of conscience to correct previously made statements made under duress and pressure from M Ladney - Righting a wrong for the benefit of the industry.[100]This note was transcribed into a slightly different form, headed “Explanations of assistance in spillover case include:” and dated 7th July 2003. The first point is amplified slightly so that it reads as follows: “A priority for JWH is to keep CGI, from which Hendry derives his principal income, trading profitability [sic] so that development and marketing of EGM can flourish”.[101]The other two points have minor but insignificant amendments. It ends by saying:
“These are quotes made in discussion between JW Hendry and TC Pearson.”
Mr Pearson’s evidence was that he would dictate to his secretary, and his secretary would usually type things up within 24 hours of the dictation. On the same date (7th July 2003) she typed up a document recording the amended terms agreed with Mr Hendry and noted on the face of the previous undated typed document. I think it likely, and I find, that this was all done within a short time of Mr Pearson’s meeting with Mr Hendry, so working back from the dating of the documents it is apparent that Mr Pearson was having a discussion with Mr Hendry about both his improved terms and his evidence at the beginning of July. They also demonstrate that Mr Hendry had made a disclosure before then – the proceedings had commenced on the basis of that disclosure.[102]The notes obviously betray a sensitivity about the fact that Mr Hendry was going to be giving evidence. They also betray, and Mr Pearson admitted, a link between paying Mr Hendry and his giving evidence. Mr Pearson conceded that Mr Hendry might have linked his increase in pay with his assistance in the spillover case, on the footing that “He considered the ongoing viability of the company to be part and parcel of this case, or to include this case, the outcome of it”.[103]Earlier he had said that the note coincided with “possible proceedings” and that it was “therefore important that we kept Mr Hendry in good health, mobile, and in good spirits generally.” He was asked whether Mr Hendry specifically linked his increase in remuneration to giving help in the spillover case, and after a slightly evasive answer Mr Pearson said that:
“It is quite possible that, being Jim Hendry, he mentioned it.”
[104]I think that Mr Pearson was being a little coy about this event in his evidence. I find that there was understood to be a link between Mr Hendry’s helping in the spillover litigation and his improved terms. It was probably something that was unsaid between them, but which was nevertheless in some way understood. That is not to say that it was agreed that Mr Hendry would tell a story in exchange for better pay and terms. But Mr Hendry probably managed to convey that if he were to be as helpful as Cinpres would like, then he expected better terms.[105]One does not have to conclude from this that Mr Hendry was making a story up in order to extract better terms from his employer. While it is consistent with Mr Hendry’s fabricating a story for personal advantage, it is also possible that he had a true story to tell, but decided that if he was to put himself out to the extent necessary to enable Cinpres to take advantage of it he was going to try to get some collateral benefit from it. Whether or not that is a commendable attitude, it is a plausible explanation which has to be weighed and considered. It does not plainly prove Mr Purvis’s case that Mr Hendry made up his story for financial advantage.[106]I therefore pause at this point to consider the probabilities arising out of this body of evidence. At the end of the day I must assess the crucial question of fact (what did Mr Hendry do or know at Cinpres) on the basis of all the evidence, but it seems to me that the question of why Mr Hendry would be lying now is a very important one. If a sufficiently strong motive for his doing that cannot be established then the probabilities of his lying now are very much reduced.[107]That a man should wish to right a wrong by telling the truth now is a plausible explanation. The more difficult question in this case is the degree of plausibility of Mr Purvis’s counter-suggestion that Mr Hendry was doing it for the financial advantage first of maintaining and then of increasing his financial benefits from his consultancy contracts. One has to start with the first indications of recantation to Mr Pearson in 2001. At that point of time Mr Hendry has ascertained that Gas Injection Ltd is to merge with Cinpres. He is obviously going to be concerned about the effect of this on his contract. On Mr Purvis’s hypothesis he fears that this will bring his consultancy to an end, and he cannot risk the loss of income. He knows that he has given evidence against Cinpres, and that there is still bad blood between Cinpres and Mr Ladney. Spillover is still a bone of contention. He fears for his contract, and decides that what he should do, to maintain his income stream, is to confess that he lied before and say he knew about spillover in order to make Cinpres more ready to employ him (or to continue to do so). He in fact discloses by degrees, making a short disclosure to keep his contract going in 2001, and then another in 2002 to get an increased remuneration, and then a fuller one to get even better terms in 2003. Mr Purvis suggests that he may well not have thought he would end up having to give evidence, and disclosed little by little, making up as much as he had to. It is suggested that he made an assessment that a prosecution for perjury was unlikely. This is said to explain the fact that the story moved from one in which he referred just to the paintbrushes to one in which he claimed to have worked on the plinth. He was basically indicating that he was going to be “onside” over spillover.[108]I do not think that this reasoning really works to produce a sufficiently appealing plausible outcome. I can accept, and indeed I find, that Mr Hendry was at all material times very concerned to maintain his income, and I agree with Mr Purvis that it is not a coincidence that he made his first disclosure when there was the prospect of peril to his income. At this point it is necessary to consider the relative probabilities of the two alternative mental assessments which underlie the respective cases of the parties. i) On Melea’s case Mr Hendry has told the truth in the first proceedings. He must be taken to know that Cinpres were not at all happy about that, and that the effects were still in existence in that there were still disputes about spillover. He anticipates that that will cause difficulty for his future employment. He therefore decides to say that he came across spillover when he was at Cinpres after all, even though he knows that to be untrue. But why would he think that that would help? On this hypothesis Cinpres knows that it lost the first proceedings because of his evidence. By this time Mr Jordan is only a consultant, but he is still involved, and it is highly unlikely that those managing Cinpres would put the history on one side completely. On this hypothesis that was not Mr Hendry’s calculation anyway – he is worried that his history will stand in the way of his future engagement. In those circumstances why would he think that Cinpres would think better of him and be induced to employ him if he were to confess to an untruth that he had lied in 1996? A rational man would be likely to calculate that a disclosure would make matters worse, not better, and decrease the likelihood of future employment. The position might be otherwise if Mr Hendry had gone beyond merely disclosing his previous false evidence and had actually held out the prospect that he would help to put matters right by reversing his evidence, or something like that. That begins to add plausibility to the motivation and purpose. But there is no evidence that Mr Hendry did that in the two early stages of his disclosure – he told Mr Pearson that he had come across spillover when he was at Cinpres, but there is no suggestion in the evidence at this stage that he was suggesting how this might be used to Cinpres’s advantage, which would come naturally with a false disclosure designed to induce Cinpres to keep him on. These factors detract from the plausibility of Mr Purvis’s case, and make it less probable. ii) That is to be compared that with the alternative explanation. Cinpres’s primary case (and Mr Hendry’s position) is that the disclosure has nothing to do with money or potential loss of his job. He was just trying to remedy a wrong. On this footing the timing is coincidental. I do not consider that that is likely – I think that there is a link. But even so there is an explanation which is consistent with Mr Hendry being right this time round. On this case he knows he has wronged Cinpres in the past, and hears news that means that he might lose his consultancy because of the merger with Gas Injection Ltd. He has a conscience about it anyway, and is driven by his conscience to mention it. He doubtless hopes that that will not affect his prospects, but maybe hopes it will clear the air.[109]It seems to me that the second of those alternatives is the more probable. It involves less of a calculated response than the first alternative. I do not doubt that Mr Hendry is a calculating man who is willing to make the most of all available opportunities – witness his working for Mr Ladney contrary to the terms of his contract. He does not always calculate wisely. However, the degree of calculation required in Mr Purvis’s scenario seems to me to have a higher degree of improbability. I think it is very much less likely than the alternative.[110]That reasoning leads to the provisional conclusion that it is more probable that Mr Hendry did not decide to lie for money. That in turn makes it more probable that he was motivated by a desire to tell a true story about the circumstances of his coming across spillover, and that he lied in the first proceedings. Having reached that as a provisional conclusion on that material, I now return to consider the rest of the evidential picture in relation to spillover at Cinpres.[111]Mr Purvis relies on other matters which he says demonstrate that Mr Hendry is likely to be lying now. He points to various inconsistencies in Mr Hendry’s version of his participation in the work on the plinth. He claimed to have a detailed recollection. His versions of events were inconsistent. In his first statement (affidavit) he describes injecting plastic into the mould through two runners (north and south), then blocking off the south runner at the end remote from the sprue, then opening that end and blocking it off at the end next to the sprue so that it could take overspill. In his evidence in chief he clearly said that they started with all four runners, then blocked off two (which happened to be those subsequently designated as east and west) and then one more, and so on. He stuck to this story in cross-examination. Not only are those stories inconsistent, they are inconsistent with the evidence of Mr Sayer and Mr Jordan, who both say that when the mould arrived two of the runners were already blocked off. There were other inconsistencies, but this was the most striking.[112]Allied to this is what is said to be a developing story from Mr Hendry as to what it was that he did or knew at Cinpres. His first remarks to Mr Pearson indicated merely that he knew about spillover at Cinpres. Details were apparently not given. In December 2002 he got his independent advice from Eversheds. Their letter of advice to him contains a heading “Previous testimony”, under which there is a general reference to evidence related to his knowledge of the plinth and the Cinpres manual. There is then a specific reference to two previous questions and answers in which he expressly confirmed that his knowledge of spillover started in 1987, while he was with Mr Ladney’s Gain group, and an express denial that anything that he did at Tamworth (effectively Cinpres’s premises) helped in coming up with that invention. From this and from the rest of the letter I am invited to infer that he did not tell his solicitor anything about taking part in the invention of the plinth. I do not think I can draw that inference. I do not know what instructions he gave those solicitors.[113]Then Mr Purvis points out (correctly) that the initial statement of case in the Patent Office refers only to the paintbrush incident, and the use of “this experience” with Mr Ladney, and not to the plinth at all. It is said that, as a result, the claim was originally limited to a claim of joint ownership. This is said to demonstrate that he cannot have told Wragges that he made the invention on the plinth – had he done so the initial claim would not have been drafted as it was. In this connection Mr Purvis also relies on the evidence given by Mr Hendry in cross-examination that when he first told Mr Pearson about his involvement with spillover at Cinpres he referred to the paintbrush incident and not to the plinth. These two points are more telling. However, Mr Hendry told me that the reason that he did not go on to talk about the plinth was because (in essence) the conversation did not get that far because Mr Pearson indicated he was going to do a deal with Mr Ladney anyway. The significance of the statement of case not containing a reference to the plinth may be greater, but it may also be attributable to a failure to get proper instructions at the time. It looks as though the proceedings were started within a short time (a matter of roughly 4 weeks or less) after Mr Hendry told Cinpres that he would help. No positive evidence was adduced as to why it referred only to the paintbrush incident.[114]Mr Purvis is also able to point to a number of other factors which point away from Mr Hendry’s current version of events and towards a conclusion that Mr Hendry was telling the truth in the first proceedings: i) The absence of any documentation supporting his case. Mr Hendry said he always took notes, but left them at Cinpres. Mr Sayer confirmed that it was Mr Hendry’s practice to take notes, but he (Mr Hendry) always kept them with him, leading to the inference that they would probably have gone with him when he left. Either way, there has never been any production of notes made by Mr Hendry and showing that he participated in or even knew of spillover being practised in relation to the plinth. ii) No other person can apparently remember Mr Hendry being at the press on the occasion or occasions in question. Mr Sayer’s evidence has always been that Mr Hendry was there or that he (Mr Sayer) told him about it. He could not be more positive about his presence than that, even in 1991 when he gave his first statement. Mr Jordan cannot put Mr Hendry at the press, though he does have a recollection of Mr Hendry being present at the painting trials, which was a later stage of testing. He had asked other employees, and none of them could remember Mr Hendry at the press at the relevant time. iii) There was no reason to suppose that Mr Hendry would necessarily have been there at the trials. Mr Purvis sought to paint Mr Sayer’s tests and discovery (if he discovered the merits of using the south runner as an overflow) as unremarkable and not the sort of thing that Mr Hendry would necessarily be involved in. I do not think that this is a particularly good point – it certainly does not help me much. iv) He sought to make something of the fact that Mr Hendry’s passport entries demonstrate that he was in the UK only between 1st and 9th February, during the crucial period, and to show that it was unlikely that the test was done during that period by reference to some dated Cinpres notes. This is not a good point. Even allowing for the internal notes, it is quite plausible that the discovery (if there was one) took place in this period and therefore during the period of Mr Hendry’s presence in the country. v) The inconsistencies and implausibilities arising out of Mr Hendry’s evidence that he considered he had an ace in his pocket (using Mr van der Muren’s phrase) in 1991. If he had such a card, why did he never play it in order to get his money or some other advantage over Mr Ladney? At the same time as he claimed to have this conversation, he swore the first short affidavit in the first proceedings disclaiming any knowledge of Bell & Howell’s plinth. vi) The proceedings started by Milad against Mr Hendry in 1992 complained of a failure to co-operate in the English proceedings. He defended those proceedings, but did not tell Cinpres what he has now told them. In a letter of 15th November 1992 to Mr Valentine (his US attorney acting in that litigation) he said “I did and am still willing to say that spillover is Ladney’s.” This letter is said to be inconsistent with Mr Hendry’s believing otherwise or considering that he some good card to play in relation to this evidence. vii) The tenor of Mr Hendry’s evidence, and his demeanour during the conduct of the first proceedings is inconsistent with his lying then and telling the truth now. I do not find this factor particularly compelling. If he was lying then I do not think that it would have been very difficult to conceal it from Mr Cantor and the others around him, and the tenor of his evidence was consistent with the lie and proves nothing helpful to me. viii) Mr Hendry was taking remarkable risks last time if he was lying. He had been sued by Cinpres for breach of confidence, and had settled that litigation, yet within a short time had started deploying that information again. Furthermore, he was doing it on a project for a very prestigious customer (General Motors) who would not wish to be involved in any such thing. He also ran the risk of others at Cinpres being able to disprove what he said about his non-involvement – for all they knew they might have documentary proof which would help Cinpres succeed and which would prove Mr Hendry to be a liar. ix) Other lesser points were relied on which it is not necessary to set out here.[115]Some of those points are telling points tending to indicate (with varying degrees of strength) that Mr Hendry is lying this time round rather than last time round. However, they have to be considered with the question of motive. Taking all these points together, and taking into account the manner in which Mr Hendry gave his evidence, and then considering the evidence of the other witnesses (principally Mr Sayer and Mr Jordan) I conclude that he is telling the truth when he says he did not tell the truth last time. As will appear, I consider that he has embellished his evidence in important respects, but looking at the matter overall I do not think that he has come to this court and perjured himself this time round (by admitting to perjury) in order to keep his income stream going. When he made his first admission his income from Gas Injection Ltd was not large – he was being paid $2,000 per month. While it is clear that Mr Hendry needed money, it is not a large sum to justify such a big false admission. I accept it is possible that Mr Hendry started with a limited disclosure, with a view to trying to secure his position, and that it had to grow as matters got more serious. It is also true that the money which might be thought to be at stake got greater too, as time went on – his remuneration was increased over the ensuing years. However, having looked at the matter, and having looked at the man, I do not think that that is the correct analysis. Mr Hendry was probably in part motivated by his financial position when he made his disclosure, but I think that it was disclosure that was motivated, not the much more serious step of lying about whether he had been lying. In other words, Mr Hendry probably made a sort of calculation about increasing the prospects of his improving his financial position, but the calculation related to whether, and to what extent, to make a disclosure, rather than whether or not to lie.[116]In the circumstances I find that Mr Hendry did lie on oath in the course of the first proceedings, and in particular he lied at the hearing in 1996. He has not, in my, view, correctly identified clearly the extent of those lies – I do not accept all of his current evidence as to what his actual involvement with spillover was in 1985. It is therefore apparent that even now he is not an accurate, and not always a truthful, witness. I have borne that in mind at all times. In truth, however, that sort of thing lies at the heart of the claimant’s case anyway – one of the few things that is absolutely clear in this case is that Mr Hendry is capable of being a liar, and the only question is whether he has lied in these proceedings or the earlier ones. I find that, so far as his involvement in spillover is concerned, the answer is in terms of the latter.[117]I have concluded that Mr Hendry acquired knowledge of the spillover technology while he was at Cinpres. To that extent I accept the evidence of Mr Sayer, Mr Jordan and Mr Hendry himself. However, I still have to determine what it was that he acquired knowledge of, and in what circumstances he acquired it. Mr Hendry has given evidence of the genesis of the ideas in terms of the paintbrush mould incident. Despite my reluctance to accept his evidence if uncorroborated, I accept his evidence of that incident. I do not think that he has made that up. Mr Hendry’s evidence was that he then actually participated in the experimentation with the plinth mould. Mr Sayer was unable to confirm or deny that; and Mr Jordan could not place him at the machine at the time. I think that if Mr Hendry had been as actively involved in the trials of the mould in the manner suggested by him in evidence (which suggests a frequent or constant presence at the machine) then Mr Sayer and Mr Jordan would be likely to have a recollection of it. I do not think that he was quite as actively involved in it as that. To the extent that he says otherwise he has embellished his story. However, I consider it likely, and I find, that he did have other involvement in the sense that he made suggestions to, and received reports back from, Mr Sayer about the deployment of the spillover technique in the plinth mould. He may not have been at the injection machine itself while doing that, which is why no-one can place him at the machine. However, I accept Mr Sayer’s evidence that Mr Hendry was either involved or received reports, and bearing in mind that Mr Hendry was available at the factory at the time, and the relationship between Mr Sayer and Mr Hendry, I think it unlikely that Mr Hendry was not consulted about the developing process and received reports on its success. I think it likely that he had discussions with Mr Sayer during the testing process, and the idea of using the south runner as a spillover cavity evolved during those discussions. It is more likely than not that Mr Hendry suggested it himself. He certainly knew it was happening.[118]This means that he acquired, and indeed deployed, knowledge of the spillover process while he was at Cinpres. I think that he has embellished his story about this by putting himself at the machine and at the heart of the experimentation when that did not in fact occur. That is probably a result of a combination of various factors - a genuine lack of recollection, a certain amount of wishful thinking (not uncommon in witnesses), a misplaced desire to present a stronger case in order to assist Cinpres in these proceedings. I do not think that in this respect he is being completely mendacious in the sense of presenting a factual case which he knows to be untrue. In this respect I note that Mr Hendry has not adopted a policy of deliberately adopting every fact that would assist Cinpres in establishing his knowledge of spillover while at Cinpres, so it is not necessarily correct to assume that he has deliberately manufactured a lot of false detail about the plinth in order to assist Cinpres. His declining to that sort of thing can be partially judged from his attitude to some evidence about Cinpres’s manual. There is a reference in the confidential manual to what is said to be the spillover technology. If Mr Hendry had seen that manual it would have assisted Cinpres’s case. Mr Sayer has said that he believed that Mr Hendry saw it and indeed worked on it. In the first proceedings Mr Hendry denied he had seen the relevant version of the manual. If he had embarked on a deliberate policy of adopting facts (whether true or not) which would assist Cinpres in these proceedings he would have reversed that denial. But he did not. In the present proceedings he has maintained his denial that he ever saw that particular version of the manual. Issue (iii) – the materiality of the perjured evidence to the first proceedings and the decision in those proceedings[119]It is common ground that a patent applied for as a result of a breach of confidence would be capable of giving the victim of the breach the benefit of an interest in the patent – see Markem v Zipher [2005] RPC 31. At the end of the day there was no real dispute that the use of spillover technology in the plinth was something that Mr Hendry ought to have kept confidential under the terms of the settlement agreement between himself and Cinpres. It follows that the true facts, as I have found them, would have been capable of affecting the decision in the first proceedings, and that the perjury in relation to them was therefore a material perjury as to a material matter. Were these fresh entitlement proceedings, not taking place against a background of the first proceedings, I would next have to go on to consider what interest that gave rise to. However, the decision in the first proceedings means that I cannot yet go to that point. I have so far found that Mr Hendry acquired knowledge of the invention subject to a confidentiality obligation in relation to it, and that that means that there was perjury going to a material point, and indeed the central point, in the first proceedings, but before that can be said to undo the estoppel arising from those earlier proceedings it must be established that Mr Ladney procured it, or at least knowingly took advantage of it. I therefore turn to that point. Issue (iv) - the participation in or the knowledge of Mr Ladney as to the perjury[120]Mr Hendry’s evidence on this point can be divided into two sorts – evidence that Mr Ladney knew the truth but let Mr Hendry assert otherwise, and evidence that he did something stronger and pressurised Mr Hendry to tell untruths. Until he was cross-examined it appeared that Mr Hendry was asserting the US attorneys were exerting pressure on him in the form of encouraging him to beef up his evidence, but he denied any such case in the witness box.[121]The first time the point was said to have come up was when Mr Hendry was working on the Baretta door. I have dealt with the evidence in his first witness statement above, which contains a reference to Mr Ladney’s being “furious”. In cross-examination the matter came out differently. When asked what Mr Ladney’s reaction was when he said that he had come across the technology at Cinpres he said:
“He said that he had Cinpres on the ropes. He was going to put them out of business, so do not worry about it, go ahead and get this thing patented. As I said, I did not think he could patent it because cold slug wells were old.”
There is no suggestion of “fury” there (contrast his witness statement), and as Mr Purvis said it is hard to see why Mr Ladney would be “furious”. The evidence of pressure arising out of this evidence is very weak, and I am not prepared to find that Mr Ladney’s attitude was anything which might amount to pressurising. Mr Hendry then went to Brooks & Kushman and procured the making of the patent application. I do not find that he did that as a result of any pressure exerted by Mr Ladney. He did it voluntarily and without pressure. I therefore find there was no pressure at that stage. The extent to which I can find that all this evidence this justifies a finding that Mr Ladney knew of the use at Cinpres is something I deal with below.[122]Thereafter the evidence of pressure exerted by Mr Ladney to get Mr Hendry to give perjured evidence is of two kinds. The first is fairly generalised evidence of Mr Hendry that Mr Ladney from time to time made remarks to the effect that there would be problems if he did not get his patent. Mr Hendry was worried that he would lose his consultancy if he did not support the patent application with his evidence and thus felt pressurized. He also relies on the incident in the Hilton Hotel which I have referred to above. He said that at the hearing he felt intimated and pressurized by Mr Ladney’s presence, because he had his eyes on him.[123]To find that one man pressurised another into giving false evidence is a very serious allegation. So far as standard of proof is concerned, it falls into the same class as allegations of fraud – while the standard of proof is still the balance of probabilities, the court requires more compelling evidence because of the seriousness of the allegation and the lesser likelihood that it is true (when compared with lesser allegations). I have already indicated that Mr Hendry’s evidence has to be treated with a great deal of wariness, and this part of the case against Mr Ladney is one that I would be highly reluctant to accept without corroboration. The only corroboration available is Mr Erikson’s evidence (or at least it corroborates knowledge). Since I do not find him a reliable witness I cannot and do not rely on his evidence as corroboration. This leaves the allegation of inducement by Mr Ladney as uncorroborated, which is a compelling reason for rejecting or not accepting it.[124]However, there are other reasons for rejecting it. Mr Hendry’s evidence on the point does not make much sense. He gave his first statement in support of Mr Ladney in the first proceedings very shortly before he was to free himself from Mr Ladney’s service in 1991. There was no commercial pressure at this point. He relies on a threat to sue if he disclosed his involvement with spillover work at Cinpres, but that threat does not go so far as to require a deliberately false statement. Nor is it easy to see what sort of action could realistically have been maintained. Mr Hendry’s next false statement is that given on oath in February 1993. This is said to have been given against a background of Mr Ladney’s threatening to ruin Mr Hendry if he disclosed his involvement with spillover in Cinpres, and at this time there was, of course, an extant action (relating to other matters). However, his cross-examination revealed that he was asked to give this evidence in a telephone call from Mr Tuttle. He did not say he had any contact with Mr Ladney about it and while he was very anxious to have the litigation settled he said that no promises were made about it. Taken as a whole his cross-examination on this point failed to reveal any real connection between pressure overtly applied by Mr Ladney and the giving of the evidence. It should also be noted that was a few months before Mr Hendry was re-engaged by Mr Ladney, and I find that there is no material link (in the form of an inducement) between the giving of the evidence and that re-engagement.[125]The remainder of the evidential case on pressure is set out above in my narrative of the evidence. It does not, in my view, amount to a case which is strong on plausibility.[126]Taking all this evidence of pressure or inducement as a whole, taking into account the seriousness of the nature of the allegation, the relative implausibility of many of the allegations and above all the quality of Mr Hendry’s testimony and the absence of any corroboration, I reject the case that Mr Ladney induced Mr Hendry to commit perjury at any stage. I find that he did not.[127]I also find that a similar fate befalls the case that Mr Ladney knew the truth and stood by and let Mr Hendry give perjured evidence, and took advantage of it. As a matter of chronology this case stands or falls with Mr Hendry’s account of the events of 1987 when he says he disclosed that he had encountered spillover technology at Cinpres. That is the only occasion on which it is said that Mr Ladney was told what Mr Hendry now says is the truth. This entire case on knowledge depends on whether I should accept Mr Hendry’s or Mr Ladney’s evidence on the point.[128]Again, bearing in mind the quality of Mr Hendry’s evidence generally, and the absence of corroboration, I am unable to accept Mr Hendry’s evidence on the point. But again, the matter does not rest there. Yet again it lacks a certain plausibility. If Mr Hendry is right then Mr Ladney must have given him instructions to apply for the patent notwithstanding what Mr Hendry had said. This would expose him to the risk of being sued by Cinpres. He could not know whether Cinpres had some killer evidence which would enable it to win. Mr Hendry does not say that he said anything about this. If Mr Ladney “knew” that Mr Hendry had been involved in overspill at Cinpres, and yet still wanted to apply for the patent, one would have thought that he would have tried to find out what the risks were of his doing that. He is obviously not a man who shrinks from litigation, but he is equally obviously a man who would want to know the fuller picture. Yet there is no evidence from Mr Hendry that Mr Ladney asked, and Mr Hendry told him, what the Cinpres background was. Furthermore, while Mr Ladney might not have shrunk from litigating with Cinpres, he would have been rather less keen on landing an important customer like General Motors with the prospect of claims from Cinpres, or exposing them to an allegation that confidential information had been used in the manufacture of one of its products. Mr Ladney would have been brazenly embarking on a potentially risky course of conduct without taking any steps to inform himself of the risks. I do not think that he is that sort of man.[129]That event in 1987 is the key to the knowledge part of this case. That is the only occasion on which Mr Hendry is said to have told Mr Ladney about what had happened at Cinpres. All later acts pre-suppose Mr Ladney was told in 1987. Since I find that Mr Ladney was not told anything about spillover being involved in 1987, it follows that the case based on knowingly taking advantage of the perjury fails, because that case depends on knowledge which Mr Ladney did not have.

What in fact happened in this case?

[130]It would not be satisfactory merely to reject Mr Hendry’s evidence about Mr Ladney’s participation without making a finding as to what actually happened to lead to his giving false and perjured evidence. If one is contemplating the plausibility and implausibility of a party’s or witness’s case it is appropriate if not necessary to measure it against alternative facts to see if other facts are more plausible. Having considered the evidence I consider the true facts to have been as follows.[131]I have already found that Mr Hendry acquired knowledge and experience of the spillover technology when at Cinpres. When he left Cinpres, Mr Hendry took that knowledge with him. He was antagonistic towards Cinpres. There were proceedings. He went to work for Mr Ladney, and worked on the Baretta door. There he deployed the ideas flowing from the use of spillover on the plinth at Cinpres, but he did not tell Mr Ladney that he had come across it there. There was no reason why he should – it would only work to the benefit of those whom he disliked, and those whom Mr Ladney was competing with. He therefore kept quiet about it. He participated in the patent application probably because it required more money to work the application and Mr Ladney had the money. He was prepared to do so because he would rather that Mr Ladney had the patent than Cinpres.[132]Having done that he was then somewhat trapped into a version of events. He had not disclosed that he had come across the invention at Cinpres, and still did not feel warmly towards Cinpres anyway. So when he provided his first affidavit he denied all knowledge of the invention at Cinpres. That was a short denial, and was probably an easy thing to do. Thereafter he was even more trapped. He had embarked on a certain road, and could not get off it, and actually had no particular incentive to do so. He therefore lied in his own interests. He did not tell anyone else he was doing so and he saw it through to the end. The early lies were probably easy. The later ones might have been harder, but he had to do them to maintain consistency. He might well have felt that Mr Ladney would think ill of him, and even dismiss him, if he went back on his evidence, and that may well have provided a further motivation for continuing the lie, but it does not amount to improper pressure from Mr Ladney, and it certainly does not prove that Mr Ladney knew the truth.[133]Then in 2001 a combination of his conscience and self-interest (now that he was likely to ride the Cinpres horse again) led him to think better of his situation and retract. Hence his conversations with Mr Pearson and his eventually agreeing to give evidence. He was prepared to explain that he had lied, but wished to provide an explanation which would cast him in a less bad light and distribute at least some of the blame in the direction of another man whom he did not like. Hence his attempts to involve Mr Ladney as having knowledge and as having applied pressure to him. Of course, it is difficult to construct a reliable story about that sort of thing and maintain it in the witness box, and that explains some of the weaknesses in his story and its inconsistencies. His desire to present a good story probably also partially explains why he over-egged the pudding in his evidence of his involvement with the plinth at Cinpres. I do not accept some of his detail (about the various runners that were tried) but I think that that was an over-embellishment of the truth rather than an indication that none of his evidence about spillover at Cinpres being true.[134]I consider that to be the most plausible version of events.

Part IX - Conclusion

[135]There were a number of other issues and points in the case, but as some of them were removed by concessions, and in the light of my findings, it is not necessary for me to consider such as were not. My material findings are therefore that the decision in the first proceedings was affected by, and indeed was obtained by, perjured evidence which was material to that decision, but that the benefiting party (Mr Ladney) neither procured nor knowingly took advantage of that perjury. In all the circumstances, despite the perjury by which it was obtained, the 1996 decision in the first proceedings cannot be impeached and governs the issues which would otherwise arise in this action as to the ownership of the patent. Accordingly this action has to be dismissed. I appreciate that that result might be considered by some as less than satisfactory – the entitlement to the patent is governed by a decision which was reached after receiving and accepting perjured evidence and which might have been different if the truth had been told. However, that is the effect of the requirements of the applicable principles, as to which there was no dispute between the parties.

Cited in 1 later judgment