The forgery allegations concerned with Dr Wright’s original disclosure.
Before descending into the detail, Counsel for Dr Wright submitted I should be cautious about making any forgery findings against Dr Wright, for the following reasons:
First, because forgery allegations are of the utmost seriousness and would, if established, do great damage to Dr Wright’s reputation and future endeavours. In this regard, I was reminded of the principles which I set out in paragraph 113 above. This point is undoubtedly true, but if forgery is established the person responsible must live with the consequences of their actions.
Second, because COPA’s evidence, it was submitted, was neither satisfactory nor cogent. For the reasons explained in this Judgment and in the Appendix, I reject this. COPA’s evidence was cogent and compelling.
‘The third reason is that, due to how late in the proceedings they were raised and the unfortunate sequencing of the relevant factual and expert evidence, it has not been possible for the forgery allegations to be explored and responded to in a suitable way.’
This third reason was developed in the following way. First, I was reminded of the procedural history of the development of the forgery allegations following the service of Madden1. I have been acutely aware of this procedural history throughout my case management of this litigation down to and including this Trial. I have summarised it above. Second, attention was drawn to Dr Wright’s reply evidence in Wright9, 10 & 11 and in particular to his evidence that ‘a number of the anomalies identified by Mr Madden and relied on by COPA as evidence of forgery were the innocent result of his complex computer environment and collaborative working practices.’ Then, this submission was made:
‘Ideally, this evidence should have formed the factual background to Mr Madden’s analysis from the outset. Instead, this case has involved the reversal of the orthodox sequencing of factual and expert evidence, where the former comes first and forms the factual basis for the latter. As a result, the very lengthy detail of Dr Wright’s complex computer environment has received only cursory treatment by Mr Madden, across just over 2 pages of his fourth report.’
That last sentence is a travesty of the true position, as Counsel for COPA demonstrated when responding to it. In summary:
It is true that Dr Wright devoted many paragraphs when describing his ‘complex computer environment’ (particularly in Wright8 and 10), but in reality there were relatively few technical points which emerged which were capable of affecting the allegations of forgery.
I am entirely satisfied that Mr Madden considered Dr Wright’s explanations carefully. In Madden4, it was apparent that Mr Madden had reviewed Wright9, 10 & 12, and had been asked specifically whether they led him to change his opinions in that Report or in his previous reports. He stated in terms ‘They do not’. In that review process, I am certain that Mr Madden adhered to his duties as an expert, in particular to be ready to change an opinion on new information coming to his or her attention.
One of the reasons why Mr Madden was able to address these points relatively succinctly in Madden4 was because he had already taken account of any that mattered in his first report. To cite two examples, in Appendix 24 to his first report, Mr Madden acknowledged the possibility of overlapping edit times due to multiple computers being operated simultaneously, but made it clear that he did not draw any conclusions on individual documents on the basis of edit time observations alone. They are not irrelevant but part of the context. In the same Appendix, Mr Madden took account of the possibility of multiple virtual machines being in operation simultaneously – long before Dr Wright even raised the point.
In any event, Mr Madden’s analysis and COPA’s reasons for alleging forgery identified, in each case, numerous indicators which, when combined, gave rise to a compelling case which Dr Wright was unable to answer. Further, when considered against all the circumstances of this case, the compelling case on each allegation of forgery became unanswerable.
Furthermore, the complaint about reversing the orthodox sequencing of factual and expert evidence has very little substance, bearing in mind (a) this was done at the explicit request of Dr Wright’s then Counsel and (b) Dr Wright’s late and very late disclosure of documents said to be critical to his case. In any event, I am entirely satisfied that all matters relating to Dr Wright’s ‘complex computer environment and collaborative working practices’ were fully considered by the experts and fully explored in evidence. It should also be noted that (a) Dr Wright’s own experts did not support his position and (b) the ‘innocent explanation’ came from Dr Wright himself. When considering the allegations of forgery, I have taken into account some of Dr Wright’s points regarding persistence (as the experts did) and also differences between Windows and Unix systems as regards certain aspects of metadata. It is, however, clear that the experts did not rely on metadata anomalies alone. Furthermore, as explained in the Appendix, for each document alleged to have been forged, there were numerous pieces of supportive evidence, which are only reinforced by the overall scale of Dr Wright’s forgery. In short, those matters do not provide an innocent explanation for all or even some of the alleged forgeries.