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Where are you? The “missing” witnesses and drawing an adverse inference

Andrew Lane reports on a recent trial of a possession claim where the issue of adverse inferences was raised.

In June I wrote an article on a sub-letting trial which I had recently concluded, and one of the points raised was the importance to a party of their putting forward the best, and at times most obvious, evidence. I said:

“Lastly, often one of the most compelling features of a case is what is not there more than what is. Why was there nothing (email, letter, statement, etc) from those persons found at the premises? Why was there nothing from the defendant’s adult children who apparently sometimes stayed there? Why was there nothing from the husband (not least to refute the notion that his wife lived with him)? Why was there nothing from the neighbours who surely after 26 years of the defendant apparently living at the premises could have confirmed as much? Don’t forget to consider and use authorities such as Wisniewski v Central Manchester Health Authority [1998] PIQR P324 where Brooke LJ considered the court’s ability to draw adverse inferences from the absence or silence of a witness (that can of course go both ways).“

Last month I was in trial dealing with an “only or principal home” possession claim and my skeleton argument highlighted this same issue, and indeed the same authority, in a case where the defendant called no other witnesses than themselves:

“Conversely, the Defendant’s evidence in support of her case is limited in the extreme.  She has further not called her husband, Mr……. or any person from the neighbouring flats and houses to the Property to give evidence. Such absence is telling. In Wisniewski v Central Manchester Health Authority [1998] PIQR P324 at [340] Brooke LJ considered the issue of “missing” witnesses and summarised the relevant principles:

“(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reason for the witness’s absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”“

Caution

Against that background it is important to note that Sir Ernest Ryder SPT cautioned in Manzi v King's College Hospital NHS Foundation Trust [2018] EWCA Civ 1882 at [30]:

“Wisniewski is not authority for the proposition that there is an obligation to draw an adverse inference where the four principles are engaged. As the first principle adequately makes plain, there is a discretion i.e. “the court is entitled [emphasis added] to draw adverse inferences”.”

Current jurisprudence

The brilliant blog – Civil Litigation Brief – recently reported on a High Court judgment by DHCJ Hodge QC in Ahuja Investments Ltd v Victorygame Ltd & Anor [2021] EWHC 2382 (Ch) in which the opening paragraph gave a flavour of what was to come:

“In his farewell speech from the Delhi High Court, Justice J.R. Midha is reputed to have said that: “In the Court of Justice, both the parties know the truth; it is the judge who is on trial.” Never has that perceptive observation resonated more fully with me than in the present case, where both parties have signally failed to assist the court by calling evidence from three highly relevant potential witnesses, in breach of their duty under CPR 1.3 to help the court to further the overriding objective to deal with the case justly and at proportionate cost. As a result, this is not so much a case of “Hamlet without the Prince” as one of Hamlet without any of Polonius, Gertrude or Laertes (or Rosencrantz and Guildenstern without Hamlet, Claudius or the Player).“

The facts of the case are unimportant for current purposes but rather the Judge’s consideration of Wisniewski and a Court of Appeal “warning” not to over-use the principles raised therein – in Magdeev v Tsvetkov [2020] EWHC 887 (Comm) at [150]-[154] – is of some interest and instruction:

“65. In my judgment, before the discretion to draw an adverse inference or inferences can arise at all, the party inviting the court to exercise that discretion must first:

1. establish (a) that the counter-party might have called a particular person as a witness and (b) that that person had material evidence to give on that issue;

2. identify the particular inference which the court is invited to draw; and

3. explain why such inference is justified on the basis of other evidence that is before the court.

Where those pre-conditions are satisfied, a party who has failed to call a witness whom it might reasonably have called, and who clearly has material evidence to give, may have no good reason to complain if the court decides to exercise its discretion to draw appropriate adverse inferences from such failure. A good illustration of this, in the context of the present case, may be afforded by what passed between Mr Singh and Mr Jandu over the phone in the few minutes before exchange of contracts for the sale of the property at 15.11 (GMT) on 1 March 2016.“

To add to the Manzi, Magdeev and Ahuja line of authorities we also have Lord Leggatt’s lead judgment in the recent Supreme Court case of Royal Mail Group v Efobi [2021] UKSC 33 – referred to in Ahuja at [31] – at [41]:

“The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority [1998] PIQR P324 is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.“

Impact beyond adverse inferences

Finally, it is worth noting what DHCJ Hodge QC said in Ahuja at [32]-[33] (the “third aspect” concerned rectification):

“32.The omission to call a material witness or witnesses without reasonable explanation may have a significance that goes beyond the drawing of appropriate adverse inferences. Three particular aspects are of particular relevance to the present case. First, in a case where there are contemporary documents which appear on their face to provide cogent evidence on an issue which is contrary to the evidence of one of the parties to the litigation, the court may decide to take the documents at their face value, and decline to accept that party’s evidence to the contrary, where this is unsupported by the evidence of a non-party witness who clearly could have given evidence material to that issue and who might have, but has not, been called by that party as a witness. The same may apply where the evidence of one of the parties to the litigation is contrary to the known or probable facts.

33.Second, the failure to call a witness who might have been able to give evidence on a material issue may mean that the court is left with no direct evidence at all on that issue. In that situation, the party who might be expected to have called that witness cannot complain if the court rejects that party’s case on that issue and either makes a finding based on the inherent probabilities presented by the limited evidence that is before the court, or simply concludes that it is unable to make any finding of fact at all on that issue. This is an alternative way of analysing my conclusion as to what was said during the telephone conversation between Mr Jandu and Mr Singh between 15.02 and 15.06 GMT on 1 March 2016 (if Ahuja can be taken to have been advancing a positive case on that issue notwithstanding the paucity of Mr Singh’s evidence on the point).“

Conclusion

It is clear that simply not calling a witness without apparent reason is not, in itself, necessarily sufficient to enable a court to draw adverse inferences (or indeed reach other negative determinations). However the “Wisniewski principle” remains sound and requires consideration as to its possible application in housing fraud/misuse cases.

Andrew Lane is a barrister at Cornerstone Barristers. This article first appeared on the set's blog on social housing fraud.

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