The recent case of Ellis & Ors v John Benson Ltd [2025] EWHC 2096 (KB) serves as a reminder of how integral a witness’ performance and conduct is to the outcome of a case
Table of contents
1. The facts of the case
The case concerned a dispute between a driving school (the defendant) and the twenty driving instructors (the claimants) who were former franchisees of the defendant.
The claimants alleged that the managing director of the defendant had created an abusive and intimidating environment, which amounted to a breach of a good faith implied term in their franchise agreements, allowing them to terminate their agreements. The defendant counterclaimed on the basis that the terminations were unlawful and therefore in breach of contract.
The court was asked to rule whether these terminations were lawful and therefore whether the claimants are discharged from their franchise agreements with the defendant.
2. The defendant’s witness evidence
The judge was heavily critical of the main witness for the defendant – the managing director of the defendant – stating that his “frequently aggressive and sarcastic [behaviour]…provided an insight into the complaints about his conduct with franchisees as described in their evidence.”
Examples of his conduct, include:
- Replying to the claimants’ counsel in the belief that a question had been asked twice before, saying words to the effect: "for the third time, I have explained it." On another occasion, he said words to the effect: "I've already told you that a few minutes ago."
- When a document was put to him by the claimants’ counsel, he said words to the effect "I do not know what you are reading. It must have been written in invisible ink." When asked a question about Paul Beck, a trainer, he said: "That is a silly question." To another question, he said to the claimant’s counsel "that is a ridiculous thing to say."
- Regularly using demeaning words such as "nonsense" and "ridiculous" to characterise the questions asked.
- When it was put by the claimant’s counsel that he wrote "aggressively”, the defendant’s witness replied with the following or words to this effect "It's that word again...you love it."
The judge concluded that this went “beyond merely crossing the line of someone who was provoked in repeated questioning” but was “confrontational and intended to undermine…[-] telling about [his] approach to other people when not getting his own way.”
3. In summary
The judge ruled in favour of the claimants – that the good faith terms were implied into the franchise agreements and that therefore the defendant had been in breach of these agreements.
Whilst there was other evidence supporting the claimants’ case, it was in large part the judge’s assessment of the defendant’s managing director that had a direct impact on his findings. The judge stated, that “if this way the way in which [he] behaved in the formal environment of a courtroom, then it is likely that it bears out overbearing conduct related by franchisees about his conduct at the workplace”.
This serves as a timely reminder for instructing solicitors to:
- Ensure that they have carried out a thorough assessment of negative characteristics and risk factors during the witness selections process.
- Consider whether a witness could benefit from witness familiarisation training before taking the stand.
Bond Solon believes that no witness should be disadvantaged by not understanding the process or be taken by surprise when giving evidence. Our training sessions address these potential pitfalls head-on, equipping witnesses with the understanding, skills and confidence needed so that they can navigate the process successfully, helping mitigate risk and achieve the best possible outcome. To enhance our interactive and innovative training offering, we have developed a collection of virtual reality courtrooms, including an inquiry-specific virtual courtroom.
For more information about our witness familiarisation training or to book a session, please contact a member of the Bond Solon team on 020 7549 2549 or info@bondsolon.com