PROPERTY developer Paddy McKillen today criticised the way two of the UK's best-known businessmen approached a legal battle over control of three top London hotels.
Mr McKillen invited a London High Court judge to draw "adverse inferences" when assessing decisions made by Sir Frederick Barclay and his twin brother Sir David, who own the Daily Telegraph
A lawyer representing Mr McKillen told Mr Justice David Richards that Sir Frederick "chose not to give evidence because he did not consider that his account would survive cross examination".
And Philip Marshall QC suggested Sir David Barclay "chose not to give evidence" because it would have been "unhelpful" or "exposed as untrue on cross examination".
All three businessmen were investors in Coroin - the company which owns Claridge's, the Connaught and the Berkeley hotels, the judge has heard at a High Court trial in London which started in March.
Mr McKillen, who comes from Belfast and is based in Dublin, says "company affairs" were conducted in a "manner unfairly prejudicial to his interests".
He says the Barclay brothers "engaged in a scheme" to take control and claims to have been a victim of "unlawfulness" and "unfairly prejudicial conduct".
The Barclay brothers, who grew up in London, deny Mr McKillen's allegations and say he is trying to tarnish their reputations and embarrass them.
Mr Marshall today criticised the Barclay brothers as the trial drew to a close and lawyers began making final submissions.
Sir Frederick had sworn a brief witness statement but had not attended the trial so he could be cross-examined, Mr Marshall said today in written submissions given to the judge.
"Adverse inferences can and should be drawn from Sir Frederick's refusal to give evidence," said Mr Marshall.
"In the light of Sir Frederick's refusal to attend to give evidence, the court should infer that Sir Frederick Barclay chose not to give evidence because he did not consider that his account would survive cross-examination."
Mr Marshall said Sir David had not been prepared to give evidence and had not provided a witness statement.
He said Sir Frederick had told the court - in his witness statement - that Sir David was "seriously ill".
"The health of Sir David was described by Sir Frederick in his witness statement as follows," said Mr Marshall.
"'My brother has been seriously ill for some time with angina. In September last year he had two stents implanted. He has not recovered well and, for example, remains unable to concentrate, attend meetings or read long documents. He has been unable to prepare a witness statement in the proceedings.'"
But Mr Marshall added: "There is very real reason to question this account of Sir David's ability to prepare evidence and Sir Frederick has, as noted above, not been prepared to attend court to enable this statement to be tested.
"There are numerous examples of Sir David preparing and reading documents, sending and receiving communications after this date, and several examples of him signing lengthy documents."
And he told the judge: "The inferences which it is appropriate that the court should draw from the failure to give evidence are, in particular, as follows:
"Sir David Barclay was and is able, if he chose, to (i) prepare a witness statement of his evidence in relation to the factual matters raised in the proceedings of which he had personal knowledge, (ii) attend for cross-examination.
"Sir David Barclay chose not to give evidence because he knew that the evidence he would give would (if honest) have been unhelpful to the case being advanced on his behalf and by the other respondents/defendants, or that if he sought to support the case made on his behalf it would be exposed as untrue on cross-examination."