The Husband, The Wife, The Diamond and The Auctioneer: When Witness Evidence Goes Wrong

Here follows a salutary tale for those calling witnesses without certainty about what the witness might say.

The diamond in question was allegedly a one-in-a-million car boot find owned by the wife and splashed across the Press at the time of its discovery. The auctioneer in question had been drafted in to sell the jewel. Add into the mix a suspicious husband and an allegedly fraudulent wife, and the stage was set for explosive witness evidence.? No-one in the courtroom could have predicted what would follow (except the auctioneer…).? ??

In TV v AM 2023 EWFC 247 the husband had applied to set aside a consent order made in 2021 on the basis inter alia of material non-disclosure by the wife.? Most particularly, he alleged that she had not disclosed a ￡2m diamond ring, which ownership the husband came to learn of via an ‘anonymous tipoff’ following the story in the Press. ?The husband claimed that he and his wife had frequented car boot sales during their marriage and she had often bought herself costume jewellery.? A story that she had chanced upon the proverbial needle in a haystack was all too believable to him.?

To get to the bottom of the wife’s ‘fraud’, the husband made an application for disclosure by auctioneers and valuers based in Northumberland who were instructed to sell the diamond ring by a vendor.? The auctioneer duly responded to state that neither the wife nor the wife’s mother matched the description of the vendor and that nobody of that name was involved in the contract for sale. Given the extent of publicity and relying on his anonymous source, the husband refused to believe that the wife did not own the ring.

The auctioneer did not fully comply with disclosure requirements of him and so the husband applied to witness summons the auctioneer and compel him to give evidence at court, assuming his belief would be supported.? The hopeful husband could not have imagined how fast this assumption would evaporate.? As the judge duly commented: ‘One of the problems with a witness summons is that the applicant can never quite be sure what is coming through the door or what the witness will actually say.? I suspect that no one can have been prepared for the colourful evidence of the auctioneer yesterday’.

The auctioneer had driven some distance to give evidence and made his displeasure to the court clear.? The auctioneer was described by the judge as aggressive, excitable and agitated when giving evidence.? The husband was expecting confirmation that his wife did indeed own a ￡2m diamond ring.? What the husband got was a can of worms.

Under oath, the auctioneer admitted – for the first time ever - that the story fed to the Press about the ring’s origins had been entirely fabricated by him.? The auctioneer’s business had been failing and the auctioneer desperately needed a cash injection.? He had indirect links to the actual billionaire owners of the diamond, who agreed to send the diamond from Antwerp to allow him to sell the diamond on their behalf.? The diamond was 34-36 carats and if the auctioneer had succeeded in selling it, he would then have had the opportunity to sell a 54 carat diamond.? If the auctioneer sold the smaller diamond, he would receive commission of ￡400,000, which would prop back up his business.? To generate interest in the sale he had concocted a story about a fairy-tale find at a car boot sale, which the husband (and many others) had taken as fact. By his own admission, the auctioneer had been taken aback at the extent of Press interest generated by his fib.?

The owners of the diamond had then come to learn of its notoriety when they saw stories splashed across the media.? They refused to allow the auctioneer to sell it and the diamond was demanded back in Antwerp. The auctioneer explained that he had been devastated by the fallout and did not receive his much-needed commission.? Not content with having admitted all of this under oath, the auctioneer then went on to align his sympathies with the wife and suggested to the judge that he considered the husband greedy.? To cap off his evidence, and seemingly having lost sight of why he was in court, the auctioneer suggested that he was in a kangaroo court, which no doubt endeared him further to the judge (whose jaw was probably on the floor by this point).

The auctioneer was able to provide video evidence of receipt of the diamond in his Hatton Garden office and, under oath, advised that the diamond had never left his office.? The genuine excitement of his staff opening the package from Antwerp, seen in the video, confirmed that the diamond was no car boot find.? The judge accepted that the diamond had only travelled from Antwerp to Hatton Garden and back.? There could be no suggestion that the diamond had ever left Hatton Garden and so could not have come into the possession of the wife.? And certainly not at a car boot sale.?

The wife proved a credible and reliable witness and denied possession of the diamond or anything to do with it.? With no evidence to rebut this assertion, cross-examination on this particular point had to draw a blank.?

The husband, having heard the auctioneer’s evidence for the first time (and no doubt reeling), still stuck to his belief that the diamond belonged to his wife and that she had benefitted from it or its proceeds of sale.? The auctioneer’s evidence was the height of the husband’s case and had failed him miserably.? Despite this, the husband refused to reconsider his position and had clearly convinced himself that he was right.? The judge, unsurprisingly, could not agree: ‘I find that there is not a shred of evidence to support his case’.? The husband’s application was dismissed.

The moral of this particular fairy-tale is to understand what a witness you are calling to support you is likely to say under oath.? The husband truly believed he was about to prove a huge fraud by the wife.? Ironically, he did succeed in finding fraud and so inadvertently achieved what he set out to, it was just that the ‘fraudster’ was an angry, cash-strapped auctioneer who thoroughly objected to a day out and was no fan of the person who had called for his evidence.? Witness evidence gone wrong indeed.?

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Georgina Rayment

Prettys Solicitors LLP

11 January 2024