NO:  A2/2000/3317

Neutral Citation Number: [2001] EWCA Civ 348
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(HIS HONOUR JUDGE ALLIOTT)
                                  Royal Courts of Justice  
                                  Strand  
                                  London WC2
 
                             Wednesday, 7th March 2001

B e f o r e :

LORD JUSTICE WARD

and

LORD JUSTICE MANCE

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TAKENAKA (UK) LTD and BRIAN CORFE

‑ v ‑

DAVID FRANKL

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171‑421 4040 Fax No: 0171‑831 8838
(Official Shorthand Writers to the Court)
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MR GRAHAM SHIPLEY and MR WILSON QC (instructed by Baily Gibson, 30 High Street, High Wycombe, Bucks HP11 2AG) appeared on behalf of the Applicant

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J U D G M E N T
1.	LORD JUSTICE WARD: Lord Justice Mance will give the first judgment.
2.	LORD JUSTICE MANCE: This application relates to a trial concerning three e‑mails which were sent in mid‑1999 to the first claimant ostensibly by a Christina Realtor. The e‑mails were thereby published, and they were certainly defamatory, but that was not the issue at trial. The issue at trial was whether or not they had been sent, or caused to be sent, by the defendant David Frankl.
3.	With considerable effort and a series of Norwich Pharmacal proceedings against various internet service providers including HotMail and I think also Compuserve, the claimants came to the conclusion that the e‑mails emanated from a computer located in Turkey which belonged to Thames Water who were at that time undertaking a project relating to the Izmit Dam and plant. No evidence was given by any Thames Water employee or representative.
4.	The defendant had formerly been an employee of the first claimant, Takenaka (UK) Limited, and had had dealings with the second claimant, Mr Brian Corfe, who is one of their senior staff. The defendant had left employment with the first claimant after an interview with the second claimant and almost immediately secured employment with Thames Water and worked in Turkey on the Izmit project.
5.	An important factor in the consideration of the overall probabilities is that the circumstances of his employment with the first claimant, his relationship with the second claimant and the manner of the termination of that employment would have provided the defendant with some motive to send the e‑mails. That was certainly part of the claimant's case against him.
6.	It was not in dispute that he had access to a computer belonging to Thames Water located in Turkey and that he sent certain e‑mails on it using the Compuserve account belonging to Thames Water. Thames Water gave undertakings to keep safe that computer and, pursuant to those undertakings and in the course of this litigation, purported to deliver that computer to an assistant of a computer expert, Mr Bates. Mr Bates, despite objections by the defendant, had been appointed by the Court to be the jointly instructed expert. No direct evidence was adduced by the claimants that the computer delivered up to Mr Bates' assistant was indeed the computer used by the defendant in Turkey.
7.	When he came to give his evidence the defendant said that it was not. He said that it lacked a scratch which his computer had had; it bore a thick aluminium label which his computer had not; it lacked another label which his computer had had and lacked any sign of such a label having been removed, and he also suggested that, since there was a Turkish earthquake in August 1999, this particular computer might have been expected to bear signs of earthquake damage. It was also, he observed, far cleaner than his computer although that could hardly be a conclusive point. The other points were no doubt points which the judge had well in mind when he concluded that the computer was indeed the defendant's.
8.	The claimants applied to introduce late evidence to controvert the defendant's testimony about the physical identity of the computer but that application was refused. Therefore the judge had to approach it on the basis of the matters I have mentioned. Nonetheless he came to the conclusion that it was the defendant's computer. Looking at the position overall, that in no way seems to me a surprising conclusion. Mr Wilson who appeared before us for the applicant did not in his oral submissions make anything of this point at all. The reality is that the computer contained ample material making it, in my judgment, effectively impossible to conclude that it was anyone else's computer; if it was somebody else's computer, then one would have thought that the material on it could only have been on it because the contents of the defendant's computer had been copied in their entirety. Be that as it may, it seems to me that there is no plausible or realistic ground for challenging the judge's conclusion on this point shown before us, and Mr Wilson did not focus upon it.
9.	Mr Bates performed a number of forensic tests upon the computer. He prepared a preliminary and a final report. He came to one surprising conclusion (not surprising because he came to it but surprising because of the nature of what he found). It was that the hard disk of the computer had been subjected on 13th December 1999 (after the sending of the relevant e‑mails, which took place in mid‑1999) to the most extensive corruption. This was whilst it was in the possession of Thames Water at a time when the defendant personally could have had no access to the computer. Originally, Mr Bates thought that it was in consequence of over‑enthusiastic but incompetent investigations carried out by Thames Water into the origin of the e‑mails. But subsequently he came to the conclusion, drawing upon previous experience, that it appeared to have been a deliberate attempt on 13th December 1999 to destroy material and that the operator on that date had intended to create the impression of enthusiastic and uninformed searching, browsing and copying.
10.	The operator was however, on any view, incompetent, and the exercise was ineffectively performed. Mr Bates found that what was left on the hard disk was quite sufficient, when viewed in conjunction with the information obtained from the Norwich Pharmacal proceedings to enable him to conclude that the three relevant e‑mails had emanated from the computer examined by him and that the author was the defendant.
11.	He relied on a number of factors, such as timing information relating to the alleged transmission of the e‑mails sent, summarised in his appendix I, the intrinsic nature of information on the computer he examined and proximity information, that is information (derived from the computer and the timing of messages still present on the hard disk) showing the sending of the Compuserve messages by someone who was admittedly the defendant and the sending of the Hotmail messages by someone using the defendant's name within relatively short, and in the case of the Hotmail messages, very short, times of the three e‑mails complained of.
12.	The judge concluded that the defendant sent the three e‑mails. Before us Mr Wilson seeks to challenge this conclusion on a variety of grounds, some of them related to points which were raised in evidence and submissions before the judge; some of them wholly new. Before coming to those points, I think it appropriate to look at some of the judge's reasoning in more detail. The judge set out extracts from the expert's reports which he accepted. I do not propose to quote them extensively, but there are some general themes which are worth quoting.
13.	Mr Bates concluded, as the judge quoted, that the highly detailed or fragmented picture of activity present on the computer revealed no inconsistencies and no anomalies despite the need to try and reconstruct the picture after the damage done in December 1999. He said that, although it was possible to clone one disk onto another, that was very difficult to treat as a serious possibility in the instant case. I quote one passage at page 10 of the judgment:
“However, additional analysis can be conducted to confirm the presence of external, attributable, or admitted activity on the machine, because it is inconceivable that Mr X could have duplicated such traces during his activity. This dramatically reduces the possibility that a Mr X scenario could have been responsible, but it does not remove it entirely. It is still a theoretical possibility that after creating a clone the traces of admitted activity on the original machine could have been copied to the cloned drive. However, these traces are spread over a number of areas of the disk, some of which are no longer visible to ordinary commercial software, yet are in a position which is consistent with the overall picture. This reduces the possibility of a Mr X scenario even further, and in my opinion removes it from serious consideration.
There is thus little doubt that the Realtor e‑mails came from this machine, and this machine only through the Compuserve Hotmail connection. This evidence is so conclusive that subsequent queries concerning the routing of the e‑mail messages become somewhat spurious, although they might provide further confirmation of this machine's involvement by showing that the e‑mails did emanate from a connection in Turkey.
Note that although it would be possible to dial internationally and complete an internet connection virtually anywhere, such an action would undoubtedly have left traces within the Compuserve billing log. Indeed, there are possible traces indicated in the two entries for 16th July 1999.”
14.	In Appendix K at page 78 I note that analysis of computer contents cannot conclusively identify whose finger was on the keyboard at the relevant time. This appendix then goes on to discuss the application of collateral information and present some opinions on the likelihood of more than one operator being responsible for the different types of recovered material. These opinions seem pretty conclusive, but it is essential to consider other ways in which the observed information could have come about. A major presumption here is that anything done to compromise the machine must raise Mr Frankl's suspicions.
15.	A possible explanation might be that someone with physical access to the laptop deliberately intended to make it look as if Mr Frankl was responsible for sending these e‑mails.” 
16.	Mr Bates then examined by reference to the known facts and times what would be involved by physical access to the e‑mails. The known facts included accepted e‑mails by Mr Frankl to his wife on the Thames Water account, saying that he had the computer present in his apartment at certain times. Mr Bates, after examining those timings, said:
“To make this hypothesis viable 
(a)	the individual responsible must have been in Turkey at 	the relevant times. 
(b)	would have had to have had physical access to the 	machine at the relevant times. 
(c)	would need a motive to incriminate Mr Frankl, or 
(d)	have a grudge against Takenaka (UK) Limited. 
(e)	would have knowledge of the password in 'davidfrankl' 	Hotmail account, and finally
(f) 	have the necessary expertise and foresight to carry out 	such a convoluted plan.
I do not consider this likely, and I cannot conceive of any alternative hypothesis which would fit the observed facts.”
17.	One can only agree with that, as the judge evidently did. It was on its face a powerful point against the hypothesis on which the defendant's case must be based, namely that somebody else was setting him up and interfering with his computer in order to make it appear as if he had sent three defamatory e‑mails.
18.	The grounds of appeal contain, as I have said, both grounds that relate to matters which were before the judge and grounds which are new. The judge had to view the evidence and submissions before him as a whole. He had to arrive at a decision on the overall balance of probabilities. It might have been open to him to reach the conclusion that he did not know one way or the other what the position was in which case the claimant would have failed. But, in the event, he had no difficulty in reaching a firm conclusion after hearing the expert and the defendant.
19.	Examples of points that were not explored in evidence or argued before him are, firstly, Mr Wilson's submission that the cache of material relating to the Hotmail account, which appears in the defendant's name, David Frankl, but which he denies was his, could have a quite different timing to that which Mr Bates assumed. Insofar as the submission is based on the possibility that the cache of material could have been planted by somebody from England and therefore be based on English times, the submission seems to assume what it sets out to prove. But, even if it is not vulnerable to that criticism, this point is vulnerable to the objection that it was never raised with Mr Bates or at trial. It is based entirely on a hypothesis for which there is no positive support whatever.
20.	Secondly, our attention was drawn to the timing of an e‑mail apparently addressed by the first claimants, Takenaka, to the home e‑mail address of the defendant, used we are told by his wife. Its timing was some two minutes after the third defamatory e‑mail was received by the first claimants. That again is not a point which was raised at trial or which anyone had the opportunity to consider or comment on. On its face, an e‑mail sent two minutes after the third defamatory e‑mail can have no direct significance. There were also quite a number of other e‑mails from the first claimant in 1999 and in late 1998 to the home e‑mail address of the defendant, for whatever reason. There are half a dozen, if one looks at page 688, or somewhat more.
21.	Thirdly, there was no equivalent e‑mail from the first defendants in relation to either of the first two defamatory e‑mails.
22.	As to points which were argued, Mr Wilson repeated before us that the principal strength of the case on proximity of timing of e‑mails related to the Hotmail account which the defendant denied was his, although it was operated in his name. The proximity is less striking with the Compuserve account which he admittedly used in for example communications with his wife and communications which recognised the presence of the computer in his room. There is however, as Mr Wilson frankly said, one direct link between the Hotmail account and the defendant, and that is to be found at page 638. It consists in the wording of a message addressed to the defendant from a friend, Mr Andrew Halliwell, discussing various matters of mutual interest. This was saved in Word, I think, on the hard disk of the computer. As saved, the wording purports to represent the text of an e‑mail addressed by Andrew Halliwell to David Frankl at the David Frankl Hotmail account. It is said by Mr Wilson for the defendant that this too was, therefore, another of the devious devices to which the unknown person who was setting up the defendant resorted in order to make it appear that it was the defendant who was sending the three defamatory e‑mails.
23.	Like much of the defendant's case that postulates a most extraordinary, ingenious and persistent individual who was prepared and able to create not only that document but also a whole series of bogus Hotmail e‑mails in proximity to the three defamatory e‑mails in order to make it appear that this defendant was the sender of the defamatory e‑mails. He must in some way have planted all of that material on the defendant's computer. But he did so in order, presumably, that the defendant should at some point be exposed to obloquy or to litigation such as the present, although it could only be, and was only, by the taking of very considerable steps and with considerable determination that the actual origin of the three defamatory e‑mails was ever discovered.
24.	It seems to me that the improbability of this scenario is compelling when one comes to weigh the overall probabilities. But it is said that there were timing anomalies and that, if one analyses the information as to timings, which can be derived from the computer itself, from the connections to Compuserve and the internal Hotmail transmission times, they point to an e‑mail sent (in the case of the first e‑mail) at about 1928 to 1930, whereas if one looks at the header on the e‑mail as it arrived and to the time of the e‑mail as it was received, one sees a time an hour earlier. That, it is said, postulates an e‑mail arriving before it was sent, and it was suggested that that throws doubt on the whole theory that the defendant was the author and lends support to the possibility that somebody else was setting him up but had made a simple mistake in the timing of the material which was left on the computer.
25.	Mr Bates was asked about the differences in timing quite shortly and he accepted that there was an anomaly. It is right to say, it seems to me, that there are many different times which appear, for example on the header, and for my part I find it difficult to exclude the possibility that this whole argument may be looking at an erroneous timing derived from the header which is reflected itself on the e‑mail as received. But putting that thought aside, Mr Bates was prepared to accept that there was on the face of it an anomaly, but he said that is the sort of anomaly that can occur when clocks are set, as they may from time to time be, in computers or in internet providers at a wrong time. He was not questioned further about that. Only the judge reverted to the matter at the very end of Mr Bates' evidence and asked him whether he felt that it represented a cause for doubt about the conclusions which he had reached. He responded that it did not.
26.	The judge then, very appropriately, asked counsel whether they wanted to ask any questions on that. Neither of them suggested that he did. It seems to me that counsel, Mr Shipley, who appeared below, had two opportunities to pursue this matter if it was a matter to which weight was to be attached. He had the opportunity when Mr Bates addressed it in the body of his evidence and he was given a further opportunity at the very end of Mr Bates' evidence. If it was to be relied upon as undermining the whole of Mr Bates' evidence, it was a point which could and should have been pursued with him.
27.	It is now suggested that at least two computer clocks must have been awry. If the point is a good one, that too is a matter which should and could have been pursued with him. It seems to me that the judge was bound to take the point on the limited material, as it was before him, as one no doubt of significance in the overall balance but not one which could possibly outweigh the force of the other evidence and the overwhelming probability on the basis of all the evidence that the defendant was the author.
28.	In conclusion therefore on the points argued before the judge, I am in agreement with the judge's approach on them. Insofar as it is suggested that an appeal should be allowed by reference to the new points, it seems to me that they afford no ground on which an appeal should be permitted to this Court. They do not involve any new evidence and they are points which were available below. It is observed that the joint expert's report came forward in stages, the second final report came forward a week before the trial and it too was supplemented on the day or the day before the trial began. Nonetheless there was ample opportunity, it seems to me, to focus on the material and the points were there. Viewing them as such, I have no confidence whatever that they could be developed in a manner which would throw any fundamental doubt on the judge's conclusions.
29.	In those circumstances I, for my part, would dismiss this application.
30.	LORD JUSTICE WARD: It is a sorry fact of most litigation that somebody wins and somebody loses. It is almost inevitable that the loser frequently feels there has been a monstrous injustice perpetrated which it is the duty of the Court of Appeal to put right. I suspect Mr Frankl feels perhaps even more strongly than that and that is why he is here. I agree with my Lord's analysis of the facts and only add these few words to explain why in my view there is no real prospect of success.
31.	A judgment of the judge below can be attacked if he fails to explain satisfactorily why he came to the conclusion he did. If the parties had been in Court to hear the judgment in the case listed before them, they would have heard that we gave permission to appeal on that very ground. But the reason given by the judge here is perfectly understandable. He said at page 42 of his judgment:
“But a judge tries the case upon the evidence, and in this case the expert evidence is of the highest quality in an arcane field in which the judge must be guided by that expert evidence. Mr Bates embarked upon his investigation from an entirely neutral base, instructed both by the claimant and the defendant. There could be no question of partisan bias, which is not unknown in the world of experts. Both in his written reports and in his oral evidence he provided compelling evidence, which despite the defendant's vehement denial I unhesitatingly accept.”
32.	So we know exactly why the judge decided this case.
33.	There has been some hint, more in the written submissions than the oral submissions placed before us by Mr Wilson QC, that with a single expert the judge has to be more interventionistic but those grounds are not pursued and probably were rightly not pursued. I can see no complaint about the fairness of this trial.
34.	So the complaint has to do with, at least, whether or not there was evidence upon which the judge could come to that conclusion. Plainly, there was. If the appeal against the finding of fact is against the weight of the evidence, then really something more has to be shown simply than there are two sides to the argument as there usually are in most cases that judges have to decide, and in this case listening to all that Mr Wilson has urged upon us, I can see no error in the judge's approach.
35.	The judge did refer at page 41 to the anomalies identified by Mr Shipley who appeared for the defendant:
“ ... principally as to the recording of timings to him. Mr Bates accepted those anomalies, but said in terms in answer to me that they did not cause him to doubt the validity of his conclusions.” 
36.	That in a sense sums up this case. Here was an anomaly on the one hand and that points in the defendant's favour, but set against him there were a mass of pointers which, if the judge accepted them, for example associating the defendant with the the Frankl e‑mail, then the finger of suspicion pointed inevitably at him. To point the finger at anybody else involves, from what I could see of the case, the most Machiavellian scheme that at the moment appears hugely improbable. In my view the judge cannot be criticised for finding that the balance of probabilities pointed to the defendant being the author of this e‑mail.
37.	I sense Mr Frankl's unease. If I shared any unease that an injustice had been done, that would be a ground upon which I would be prepared to act, but I am afraid I do not have any sense of that injustice. On the facts before the judge, which is what we are truly concerned with, and upon the further facts advanced to us by Mr Wilson, which were not before the judge, I am still unpersuaded that there is a real prospect of Mr Frankl upsetting this judgment. For those reasons, sympathetic as I am to his obvious distress, I would dismiss this application.
(Application dismissed)