back to article HPE lawyer claims key associates of Autonomy boss Mike Lynch 'refuse' to testify to High Court

Two key witnesses in the Autonomy trial have "refused" to testify, Hewlett-Packard's barrister sensationally claimed to London's High Court. Laurence Rabinowitz QC told trial judge Mr Justice Hildyard that two of Mike Lynch's main witnesses, former Autonomy chief operating officer Andy Kanter and one-time chief marketing …

  1. Pascal Monett Silver badge

    Wait a minute

    "they "stood down" Eagan, Kanter and another witness at the same time as three of HPE's witnesses were stood down"

    So, first of all, HPE is doing the exact same thing as Autonomy, and second, you can actually refuse to testify if you are called to the bar ?

    Must have something to do with not yet being called to the bar, I guess.

    Anyways, the title is wrong. It should be something more like "Autonomy trial sees both sides trim witness testimony from the judge".

    It's amazing what companies can get away with. You or me, we wouldn't dare pull that kind of stunt.

    1. Gordon 10 Silver badge

      Re: Wait a minute

      I think there is some creative interpretation of "refuse" from HPE's lawyers. Just sounds like they weren't needed/material to the case.

      Sounds like Lynches side have decided HPE have embarrassed themselves enough already :D

    2. Anonymous Coward
      Anonymous Coward

      Re: Wait a minute

      It depends who is telling the truth here. Is it the lawyer in court who claimed they refused, or is it Lynch's team through back channels to The Register who claimed they were stood down.

      Perhaps one is telling the truth and one isn't? Or perhaps the facts became blurred?

      1. Anonymous Coward
        Anonymous Coward

        who to believe....

        ...this well respected organ or a lawyer?

        Tricky if you've never met a lawyer maybe....?

        1. Anonymous Coward
          Anonymous Coward

          Re: who to believe....

          I'm married to one.

          And I still have to count all my fingers, toes, and gonads every time we have an argument.

          Anon, obviously, as I am quite attached to my gonads (literally).

      2. Nick Kew Silver badge

        Re: Wait a minute

        The two are not mutually exclusive. Presumably they weren't summoned, the question is why? It sounds like he's hinting one would 'obviously' have expected them to testify for Lynch, but - oh dear - they're not.

      3. 's water music Silver badge

        Re: Wait a minute

        It depends who is telling the truth here.

        That's easy to tell. Were their lips moving?

    3. DontFeedTheTrolls Silver badge
      Headmaster

      Re: Wait a minute

      I think you need to look up what "called to the bar" means.

    4. Nick Kew Silver badge

      Re: Wait a minute

      It's amazing what companies can get away with. You or me, we wouldn't dare pull that kind of stunt.

      You or I wouldn't need to. But if we had a barrister, they'd regard it as perfectly normal.

      How is this claimed to be relevant? If Rabinowitz is claiming it's relevant, could he not have summonsed them himself to give whatever evidence he expects them to have?

      1. FozzyBear Silver badge
        Go

        Re: Wait a minute

        He certainly can. It's a simple matter of asking the judge to issue a court Subpoena or simply submitting a summons notice at the court desk. Signed and stamped by a court registrar. Done Once served to the person in question, if they fail to attend, then they are in a world of hurt.

        And yes a summons or subpoena can be issued in England and served over seas given enough time

    5. Alan Johnson

      Re: Wait a minute

      Being called to the bar means to be qualified as a barrister and witnesses do need to appear if summoned to do so and they could be held in contempt if they refuse to answer questions. On the other hand they could simply say they don't remember to everything.

  2. LeahroyNake Silver badge

    Is that allowed

    I was under the impression that refusing to testify was seen as very naughty and you could be forced to comply... Or go straight to jail, not passing go on the way.

    What did the judge say?

    1. Aristotles slow and dimwitted horse Silver badge

      Re: Is that allowed

      I thought that you can me "made to comply" and/or formally sanctioned if it is a criminal case.

      As this is a civil case I'm not sure if the same rules apply?

      1. Anonymous Coward
        Anonymous Coward

        Re: Is that allowed

        You can be forced to testify in a civil case. I was forced to do a deposition for a US patent case. The US court applied to the High Court here under something called the Hague Convention, and I received a High Court writ. One of the odder experiences in my life.

    2. Jonathon Green

      Re: Is that allowed

      On the basis of the article nobody’s refusing anything.

      The way I parse this is that Lynch’s team decided that they didn’t need the testimony of these witnesses and so aren’t going to be calling them. HPE’s team are trying to make something out of this, but if they felt that this particular set of witnesses and their testimony were important to HPE’s case then surely they could/should have called them themselves...

    3. Anonymous Coward
      Anonymous Coward

      Re: Is that allowed

      While I believe witnesses can be compelled to appear, I believe the court decides if this is the case (at least in the UK) mid-trial.

      If the witnesses are appearing for the defence, and the defence chooses not to use their testimony, then the defence team can stand them down. Similarly for the prosecution, they are entitled to stand down their own witnesses unless compelled by the court to do otherwise.

      I don't believe we have heard any evidence that would require these parties to appear so far (I could be mistaken). Given the current state of the trial, I suspect HP want to try and drag the case out with some more optimistic more fishing - if they have anything concrete against that requires the witnesses to appear, I would have expected them to have presented it rather than whinging and hoping the judge agrees.

      This isn't saying that the witnesses wouldn't provide interesting testimony or that Lynch's team haven't pulled the witnesses to make HP's life difficult, but that HP or their legal team have likely made a mistake. Another mistake...

    4. aks Bronze badge

      Re: Is that allowed

      It's a civil case so I doubt that the judge would order attendance.

      These were Lynch's witnesses which he no longer feels he needs. HPE could invite them to attend but presumably couldn't compel them.

      I don't see where "refusal" comes into it.

      1. Doctor Syntax Silver badge

        Re: Is that allowed

        "HPE could invite them to attend but presumably couldn't compel them."

        HPE could sub poena them as their own witnesses but it seems unlikely that they would.

  3. I ain't Spartacus Gold badge

    I was listening to one of the excellent new Rumpoles on the iPlayer last night. And Horace would say that if London were to sink beneath the waves tomorrow, it would be know for 3 things in future times. The english breakfast, the Oxford Companion of Modern Verse and the presumption of innocence. The golden thread that runs through British Justice. That the defence need prove nothing, and that it is up to the prosecution to prove their guilt beyond reasonable doubt. For how else is Rumpole to keep himself in Chateau Thames Embankment?

    Of course this being a civil case Rumpole would only take it under protest, and the test is "on the balance of probabilities", rather than "beyond reasonable doubt". Which has also changed. When I last did jury service the test was now "so that you are sure", but they also said that "beyond reasonable doubt" was still the law too.

    But if HP have failed to make any points for them to rebut, the defence need say nothing.

    A quick Google suggests that a subpoena is now called a "witness summons". But that you can force them to testify in civil cases if you need to. I guess you need the judge to issue it though.

    1. Nick Kew Silver badge

      Rumpole dates from last century. When there was, more or less, a presumption of innocence.

      Not that that was ever applicable to a civil case.

  4. Anonymous Coward
    Anonymous Coward

    Spot the difference

    There's a world of difference between a party deciding not to use witnesses (to save time and money, and because they don't now see the point) and a witness who has been called (and likely in a civil trial, who has already given evidence in writing) refusing to attend. The former is positively encouraged by the court if it saves time and money, the latter can be contempt of court and lead to fines or imprisonment, depending what is going on.

  5. macjules Silver badge

    Bit low?

    .. oversaw its purchase of reseller Microlink in 2010 for $55m, something HPE has already questioned as long ago as 2014.

    Is that because $55m is regarded by HPE as too low to be worthwhile?

  6. a_yank_lurker Silver badge

    Fishing or Phishing

    While this is civil trial in a UK court my general understanding of Common Law is a witness who is subpoenaed must show up in court If the side subpoenaing them decides not to call them they do not testify. It sounds like these witnesses, if subpoenaed, would have been subpoenaed by Lynch's team and they were not called. If HPE's shysters want them to appear ask for subpoena but I suspect would sink more rapidly than a lead balloon.

    1. bazza Silver badge

      Re: Fishing or Phishing

      AFAIK one cannot be compelled to be a witness giving testimony in a UK court, either in a civil or criminal trial. In theory a judge might give such an order, in which case refusing is contempt of court + 28 days in jail, but I suspect the thinking is that willing testimony is far more valuable, and forced testimony more likely to be unreliable.

      Besides, it'd be ludicrous if the right to remain silent applied to the defendent, but not to witnesses...

      1. eldakka Silver badge

        Re: Fishing or Phishing

        Besides, it'd be ludicrous if the right to remain silent applied to the defendent, but not to witnesses...

        The right to remain silent applies to self-incrimination, not in giving witness testimony in court that doesn't implicate the witness in a crime.

        However, if you are summoning a witness that is to your benefit, you probably want them to be onside with you otherwise it might colour the testimony if they have been compelled to appear unwillingly.

        In most cases, an unwilling witness is probably more a hindrance than a help to the calling side (unless it's one of those "you did it, didn't you! You framed my client" type situations).

    2. Doctor Syntax Silver badge

      Re: Fishing or Phishing

      "a witness who is subpoenaed must show up in court"

      IME they certainly don't have to attend every day in a long trial nor even stay on the days when they do attend if they're not going to be called that day. Otherwise I'd have wasted even more time hanging about the Crumbling Road House of Fun than I did.

  7. John Smith 19 Gold badge
    Meh

    Defense decides not to call defense witness for defense

    Isn't that a decision of the defense team?

    If HPE want them AFAIK they can call them and IIRC not showing when asked is contempt of court.

    You're not disrespecting HPE's legal team by doing so.

    You're disrespecting the Judge.

    That is never a good idea in a British court. Y'know "I am the law" and all that.

  8. SPiT

    I would imagine that the reality is that the HPE team would like to go on a fishing expedition with these witnesses in cross-examination but can't issue their own witness summons because they have no specific evidence they want from these witnesses. That seems to be the only explanation that holds water and is highly plausible given the state of this trial.

  9. Will Godfrey Silver badge
    Unhappy

    Why don't they just give up?

    They are making themselves look more stupid with every move.

  10. Alan Johnson

    More nonsense

    IT is entirely up to Mike Lynchs defence team who they choose to call as witnesses, if they decide they no longer need witnesses who they had originally expected to call that is up to them. If HP want to call them as witnesses they can do so. The fact neither HP or the defence has not called them suggest that in fact they are not important to the case as it has developed. The attempt by HP to suggest or infer anything from the defences decision not to call is pointless and if it has any effect at all will simply be to reinforce the impresson they are clutchiung at straws.

    I don't know if it is a difference between th eUS and uK legal system but HP seem to be playing to the gallery and press rather than the judge. Perhaps they expect to lose and the whole thing is just a damage limitation exercise. It is all rather bizarre.

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