Believe me, this one is applied almost everywhere by everyone who knows, or heard about it. No matter whether it is applicable or not. It is ridiculous how often people pull this one out. Though, it is like
@DarkiusHeavenstein says, fairly easy to proof. Though that also makes it easy to shovel it down.
@DarkiusHeavenstein; are you a licensed lawyer, or just a legal advisor who happened to be asked? I'm interested to see how this case works out, mainly as a jurist in training myself xD
Though in this case I think that the opposing party had done better by gambling their chances on OD instead of on 'manhandling'. XD Just a quick first thought I get when reading your story. Though, of course I can't make any real judgement without knowing everything.