The Vagaries of Trials


A judge in assessing costs may consider the award in light of the quantum claimed. See Cusson v. Quan per Maranger, J. This decision is being appealed by the plaintiff.


One new twist in internet libel – if your statement of claim spells out the exact inflammatory words in an internet libel, the internet participants can then set them out with glee as they are merely reporting on a filed court document.

An Ontario Court coped with it in this imaginative way. The plaintiff was allowed to set out in the Statement of Claim the libel in a general way with permission to provide particulars of what was in fact spoken separately, and its delivery was not a public document until further order of the Court or consent of the parties1.  Hence the libellous words could not be repeated to the world.

Where a defendant maintains an internet forum or chat room on line and does not take reasonable steps to remove offending defamatory comments posted by others after the material is brought to his or her attention, the defendant will be liable for the defamatory publication2.

The internet attracts people that inherently believe all of their own speech is sacrosanct and is without any legal restrictions.  Clients who publish outrageous things are aghast when it is suggested that there may be regular legal liability.  “Surely not, I have a constitutional right ……. and look what Green Tom Thumb says every day ……. and Mother Sucker with regularity trashes the major banks …..!”

With the internet the issue is always “where’s the money?”

The quickest and cheapest avenue is to notify the internet provider of the libel. They can’t monitor everything.  If you give the provider notice it usually takes down the site rather than expose itself to liability after notice.  There is always a user agreement promising not to publish libel.  The site goes down overnight.  It is often the best you can do.

Baigent & Anor v. The Random House Group Ltd.3, the copyright case concerning Dan Brown’s The Da Vinci Code is important for counsel in that the judge found both parties to be untruthful and yet of course one had to win.  It is important to remember that your case can or may survive a lie.

Baigent sued in breach of copyright claiming Dan Brown had stolen the ‘architecture’ of his book Holy Blood, Holy Grail, not express words.  There is not copyright over an idea.

Mr. Justice Smith observed:

By virtue of various mergers and acquisitions Random publishes both HBHG [Holy Blood, Holy Grail] and DVC [Da Vinci Code]. Further a film production of DVC is apparently in the offing starring Tom Hanks with a scheduled release in May 2006. It is a testament to cynicism in our times that there have been suggestions that this action is nothing more than a collaborative exercise designed to maximise publicity for both books. It is true that the book sales of both books have soared during the course of the trial (in the case of HBHG it is said to be a tenfold increase).

I am not in a position to comment on whether this cynical view is correct but I would say that if it was such a collaborative exercise Mr. Baigent and Mr. Brown both went through an extensive ordeal in cross-examination which they are likely to remember for some time3.

Mr. Justice Smith was very critical of Dan Brown’s failure to produce his wife as a witness. She was his main researcher and vital. The court observed:

The following exchange took place between Mr. Brown and myself:-

MR. JUSTICE PETER SMITH: Before you do, can I ask you to look at page 48 of Templar Revelation, second paragraph at the end. Do you see what they say about Holy Blood, Holy Grail?

A. The second paragraph?

Q. It starts: “The mass of evidence”.

A. On page 49?

Q. 48.

A. “The Mass of evidence”, yes. (Pause for reading) Yes.

Q. How did you miss it?

A. How did I miss it?

Q. Templar Revelation tells you Holy Blood, Holy Grail is “essential reading” for anyone interested in this mystery and yet that is the only book you did not look at.

A. Actually, I am sure there is an enormous bibliography here of material that we did not look at. In fact, on page 39 there is an actual note that says go and look at the Holy Blood, Holy Grail.

Q. That would not really help you. The two things would suggest that you would actually go and get Holy Blood, Holy Grail as “essential reading”, it says.

A. And, as I have said, yes, it was essential reading we used it at some point. The question here is when it entered the mix.

Q. You get Templar Revelations around May 2000, you are preparing the synopsis ultimately leading to its release in January 2001. The Templar Revelations is a book that you heavily rely upon and it tells you that HBHG is essential reading. Yet when leading up to the synopsis you want me to believe that you did not look at it?

A. That is exactly what I want you to believe. It is a very short period of time. I am dealing with broad strokes. I have everything I need in the books in my synopsis, in that bibliography. I would not have been eager to pick up a book this thick about specifics when Templar Revelation so beautifully outlines the points I needed: the same with Margaret Starbird. I am in a synopsis phase. I am looking at the big picture, not the details.”

I find his answer unconvincing. In this context the cross examination at T8/1061-1063 and T9/1198-1200 is important. What is extraordinary about Mr Brown’s evidence is that he appears to have acquired all of the books that cover this area apart from the one that is described as essential reading.

…All of this could have been clarified had Blythe Brown given evidence. As shown further in this judgment there are serious issues over the use of HBHG which in reality only she could have explained. I raised her absence at the opening of the trial and drew to the parties’ attention the Court of Appeal decision upholding my decision in Karis v. Lennox Lewis [2005] EWCA Civ 1637. The Court of Appeal upheld my decision to draw adverse inferences from unexplained reasons as to why witnesses who were apparently available when their evidence was crucial to a case were not called. Blythe Brown clearly falls within that context. Faced with that observation the Defendant produced a third witness statement of Mr. Brown on 3rd March 2006. In paragraph 19 of that witness statement he set out reasons why Blythe Brown was not called. First he said that he and his wife were very close and that he firmly believed that he could answer any questions regarding her assistance to him in the research of HBHG. Second whilst he felt it important to assist Random House in its Defence of what he regards to be a spurious claim he made it clear to Random House he did not want his wife to be troubled by it. She disliked public attention and he saw no reason why she should be put through the stress that the glare of publicity would cause. The coverage of the case has been wide spread and he had been thoroughly jostled by the press himself and his wife would have hated it.

It is undoubtedly the fact that the case has attracted lots of publicity. However that is hardly surprising given the success of DVC and Mr Brown’s rise to stardom. I appreciate that a rise to stardom in the modern world creates intolerable pressures and intrusions into privacy. However it is quite clear that Mr Brown has not been able to provide all the answers as to the material which Blythe prepared for him. Second I do not regard the reasons put forward in the third witness statement for her absence as satisfactory. Whilst the litigation is against Random House it is Mr. Brown’s and his wife’s writings which are effectively in the dock. He has just as big a stake in the outcome as the Defendants. How DVC was researched and created is vital to the issues in this case. Blythe Brown’s role in that exercise is crucial and I do not accept that there are reasons of a credible nature put forward as to why she has not appeared to give evidence.

Accordingly I conclude that her absence is explicable only on the basis that she would not support Mr Brown’s assertion as to the use made of HBHG and when that use occurred in that evidence.

The plaintiff received an equivalent thump:

Mr Baigent was a poor witness. Those are not my words: they are the words of his own Counsel in his written closing submissions (paragraph 111). Those words do not in my view do justice to the inadequacy of Mr Baigent’s performance. His evidence was comprehensively destroyed by the thorough and searching cross examination of Mr Baldwin QC for the Defendant. It is no good for Mr Rayner James QC in closing submissions to say that Mr Baigent was “over awed by the circumstances and agreed almost without exception anything that was said by the Judge”. Cross examination is one of the most important (if not the most important) part of any trial. It is what essentially distinguishes the Common Law from the Civil Law jurisdictions. It is the testing of witnesses in cross examination primarily which enables a Judge to assess the truth of the witness and thus the credibility of the case. Of course allowances have to be made for witness nerves in the witness box. One has to be alert to mechanistic and plainly wrong answers being given when a witness’s performance has collapsed in the witness box. These were all summarized in the case of EPI Environmental Technologies Inc. v. Symphony Plastic Technologies Inc. [2005] 1 WLR 3456. (The dismissal of the appeal from the decision did not touch on these points). They are also echoed in the Court of Appeal decision in Lennox Lewis referred to above. Merely because (for example) I disbelieve a witness on one point does not mean that I necessarily reject his evidence on other points. I must review the evidence overall.

I make allowances for the fact that Mr. Baigent performed so badly he plainly missed obvious points when answering questions (these were mostly revived by Mr Rayner James QC in re-examination). Nevertheless the Defendants are right in their submissions even when taking in to account the factors mentioned above to submit that he was a thoroughly unreliable witness. They say that they do not know whether he was deliberately trying to mislead the court or was simply deluded and that he is either extremely dishonest or a complete fool. I do not need to decide that issue; it does not matter why he said what he did. I can place no reliance on any part of his evidence.

I accept the numerous examples that they give in paragraph 75 through to 89 of their closing submissions which show the comprehensive destruction of his evidence. I agree with that analysis by the Defendant.

I have often in my time perceived a lie to be fatal to a case. Not so.

I include this so all you counsel can feel a little better. See, you’re not the only one who trots forth bad witnesses!


  1. Thomas Kernaghan & Co. v. Restaurant Teams International Inc., 2000 Carswell Ont 515 (Ont. S.C.J.);
  2. Carter v. B.C. Federation of Foster Parents Assn., (2005) 257 D.L.R. (4th) 133 (C.A.);
  3. Baigent & Anor v. The Random House Group Ltd. (The Da Vinci Code) [2006] EWHC 719 (Ch)(07 April 2006).