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Staff turnover in the construction industry can be particularly high and finding the right person to give evidence on all issues in a case can sometimes be difficult. Parties are often suspicious when they know there is someone who should be able to give evidence for their opponent, but whom their opponent does not plan to call. There is an obvious risk in a party calling that witness when there has been a seemingly positive pre-existing relationship with the opposing party. Consequently, it is more common for a party to invite the court to draw an adverse inference where a witness should have been called to give evidence, but is absent from the proceedings.
The principles as to when such an inference will be drawn were recently considered by the TCC in Riva Properties Ltd v Foster + Partners Ltd. Interestingly, the court took into account the fact that, in cross examination, the defendant’s witness evidence had leant towards the claimant’s case as a relevant factor in deciding whether or not an inference should have been drawn against the claimant.
The test as to when an adverse inference may be made in respect of an absent witness is set out in Wisniewski v Central Manchester Health Authority. This case concerned the failure of a health authority in a clinical negligence case to call the relevant doctor as a witness. After reviewing the authorities, Brooke LJ set out the principles as follows:
These principles have been applied by the Court of Appeal (Society of Lloyd’s v Jaffray and Benham Ltd v Kythira Investments Ltd) and also relatively recently in the TCC by Fraser J (who was also the trial judge in Riva) in Energy Solutions v Nuclear Development Authority (No.2) Liability. In that case, Fraser J stated:
“The absence of certain individuals as witnesses… inevitably meant that those who were called to give evidence had to cover ground that was more logically the province of others. This would not, in usual circumstances, necessarily present a problem depending upon how many individuals fell into the category of those not called. However, in this case, so many important potential witnesses did not appear that there were substantial evidential gaps… in certain important respects…”
Therefore, when considering whether or not to draw an adverse inference a court will consider who logically should be giving the evidence on a key issue, whether there is a case to answer on that point and whether an absent witness has a good reason for not providing any evidence or attending the trial.
Riva v Foster concerned a professional negligence claim against a firm of architects. The defendant architects criticised the claimants for failing to provide evidence from any witnesses other than the directing mind of the claimant companies and his daughter. The defendant invited the court to draw an adverse inference against the claimant because he had failed to call any of his other professional advisers in relation to the project and the one witness who was neither the claimant nor his daughter failed to attend because he was on holiday.
After setting out the relevant principles, Fraser J refused to draw an adverse inference. The judge stated that he was not persuaded that the evidence pointed in a particular direction against the claimants, such that an adverse inference should be drawn. In other words, there was no obvious case to answer on the issues on which the adverse inference was sought.
The judge accepted that the witness evidence alleged to be absent was unlikely to take the evidence much further because it was really a case of one person’s word against another. As a result “no inferences were required or justified”.
The judge then went on to state that, in any event, in cross examination, the evidence from the defendant’s witnesses “moved far closer” to the claimant’s position than had been alleged in either the statements of case or their witness statements.
Fraser J was thoroughly unimpressed with the sustained attack that had been made on the claimants’ witness in relation to his credibility and business acumen. Fraser J described these attacks as unwarranted and found that the claimants’ witnesses were largely truthful.
The decision on adverse inference is sandwiched between these comments on the claimants’ witnesses and rather more disparaging comments on the defendant’s witnesses. While the issue of, generally, whose evidence the court prefers is not strictly relevant to whether or not an adverse inference should be drawn, in this case, it seems that the credibility of the witnesses did play a role, even if the judge did not expressly say so. It seems Fraser J was not willing to draw an adverse inference against claimants who, despite being subject to sustained attacks, had given honest evidence, when the defendants’ evidence had not come up to proof.
While the credibility of an opposing party’s witnesses may be seen as an element of deciding whether or not there is a case to answer on an issue on which an adverse inference is sought, the net effect of this is that in some cases it may be better for a party to “take its chances” on not calling a witness if it is thought that that witness may do more harm than good. This is because, even if the court is invited to draw an adverse inference, it may be unpersuaded to do so if the witnesses supporting the case of the party seeking the inference have not been impressive.
In other words, it may be better to say nothing than to say something in the hope that the opposing party’s witnesses cave under cross examination. It is obviously a more risky strategy for a claimant who bears the burden of proving its case. However, it may be one which, ultimately, pays off.
Trying to judge how witnesses may come across pre-trial is a difficult issue, but this case is a lesson that perhaps taking a more “softly softly” approach would have been more effective than one which the judge seemingly viewed as unnecessarily aggressive. This is particularly so when the defendant’s own witnesses failed to support the defendant’s case on key issues.
This case is to be contrasted with Fraser J’s decision to draw an adverse inference in Energy Solutions v NDS, where he held that the claimant’s case was almost frustrated by the fact that the defendant had failed to call relevant witnesses. (For example, see paragraph 140 referring to “particular personnel”, paragraph 318 and paragraph 755 referring to a more senior employee not being able to give evidence and leaving a very junior employee to give evidence instead).
The conclusion to be drawn from these cases is that adverse inferences will only likely be drawn where the silence is deafening, that is, where a witness is notable for their absence on an important issue in the case. Mere silence or mere absence is not enough, particularly where the opposing party’s evidence does not come up to proof.
This article was first published in Practical Law’s Construction Blog.
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