PHONE HACKING, MISSING DOCUMENTS AND THE ABSENT WITNESS: IMPORTANT ISSUES OF CIVIL EVIDENCE
The issues raised in the “phone hacking” trial are well known. However Mr Justice Mann also made some important observations about civil evidence. In particular the inferences to be drawn when witnesses are not called or evidence not available. These are matter of central importance to most civil litigators.
THE CASE: SHOBNA GULATI & OTHERS -v- MGN LIMITED  EWHC 1482 (Ch).
The action concerned MGN’s practice of “phone hacking” celebrities and others. Issues arose because documents were missing,
- When a party destroys documents or items which are germane to the issues in question then strong inferences can be drawn against that party.
- However the inferences are not open-ended and a court is not bound to accept evidence it would otherwise find unbelieveable.
“III – THE APPROACH TO THE EVIDENCE AND GENERAL FINDINGS
Drawing inferences where evidence has been lost or destroyed by one party – Armory v Delamirie
- The claimants make much use of the principles applicable where one party to litigation has lost or destroyed information. They say that the defendant has been responsible for the destruction, non-provision and deliberate non-creation (or concealment) of evidence so that, in accordance with the authorities, I should make findings about what happened (for example, what the nature of the content of the voicemails was, how often they were listened to, and so on) to the “greatest extent possible” albeit ultimately tempered with realism.
- The principle relied on by the claimants has its roots in well-known case of Armory v Delamirie (1722) 1 Strange 505. In that case a defendant was responsible for the non-production of a jewel where a claim to the value of that jewel was in issue, and the jury was directed to “presume the strongest case against him”. A more modern encapsulation of the principle is that of Staughton J in Indian Oil Corporation Ltd v Greenstone Shipping SA  QB 345:
“The analogy with Armory v Delamirie … is striking. If the wrongdoer prevents the innocent party proving how much of his property has been taken, then the wrongdoer is liable to the greatest extent that is possible in the circumstances.”
The effect of the principle was summarised by Simon Brown LJ in Mount v Barker Austin  PNLR 493. This was a case in which the court was not trying to value a lost chattel. It was seeking to value the loss where a solicitor’s negligence had led to an action being struck out. It demonstrates the width of the range of circumstances in which the principle is capable of applying. Simon Brown LJ said:
“If and when the court decides that the plaintiff’s chances in the original action were more than merely negligible it will then have to evaluate them. That requires the court to make a realistic assessment of what would have been the plaintiff’s prospects of success had the original litigation been fought out. Generally speaking one would expect the court to tend towards a generous assessment given that it was the defendants’ negligence which lost the plaintiff the opportunity of succeeding in full or fuller measure. To my mind it is rather at this stage than the earlier stage that the principle established in Armory v Delamirie (1722) 1 Stra. 505 comes into play.”
- That is not to say that the court will ignore the evidence that is available, or will make purely speculative or fanciful findings. The missing evidence must be put in the context of the actual evidence, and any assumptions made against the wrongdoing party must be realistic (as is accepted by the claimants). Thus In Glenbrook Capital LP v Hamilton  EWHC 2297 (Comm) Mr Jonathan Hirst QC, sitting as a deputy judge of the Commercial Court, said:
“42. In those circumstances Mr Emmet Coldrick for the Claimant argued that I should apply the well established presumption in Armory v. Delamirie (1722) 1 Strange 505; 93 E.R. 664. In that famous case, a chimney sweep found a jewel and took it to a jeweller. The jeweller offered a nominal price and the sweep asked for the jewel back. The jeweller refused to return it. In an action for trover, Lord Pratt CJ directed the jury that:
“unless the defendant did produce the jewel, and shew it not to be of the finest water, they should presume the strongest case against him, and make the value of the best jewels the measure of their damages”.
- The decision has been followed in many different contexts where a defendant’s actions have made it impossible for a Court to make an informed assessment: see for instance Browning v. Brachers (a firm)  EWCA 753, Phillips v. Whatley  UKPC 28;  2 Lloyd’s Rep 111 and Keefe v. The Isle of Man Steam Packet Company Ltd  EWCA Civ 683, where Longmore LJ put the point pithily:
 … a defendant who has, in breach of duty, made it difficult or impossible for a claimant to adduce relevant evidence must run the risk of adverse factual findings.
- This is no doubt a salutary principle, but it should not be punitive. Any adverse conclusion should take account of any evidence that does exist and it should be realistic.”
- The case is an example of a judge doing just that. It was a case which involved the valuation of converted silver. Mr Hirst rejected a submission that the principle required that the missing silver was acquired at a premium of 100% above the bullion rate, and substituted a lower figure more in line with the evidence.
- Those principles, as such, were not materially disputed by the defendant. Their application to the case, however, was.
- Mr Nicklin first said that there was no scope for the operation of the principle in this case. He submitted that the claimants were seeking to apply the principles to what had become an irrelevant factor, namely the precise scope of the wrongdoing. That was not a relevant point in the case because the material point was how much distress was caused in the claimants. This point depends on his thesis that the only compensatable effect of the privacy infringements is distress. I rule later that this point fails, so its absence undermines his submissions as to why Armory v Delamirie is irrelevant. In my view the scope of the wrongdoing is relevant, because (inter alia) it goes to the extent of the invasion of privacy which itself goes to damages. The scope is a live issue in the case because the admissions of the defendant only admit (in substance) that the invasion was substantial, which gives no real idea of level or scope, and that each of the invoices from the private investigators was in respect of the unlawful acquisition of private information without admitting how significant that information was. Those are significant points in the case.
- Next Mr Nicklin submitted that the principle was not applicable to define what he described as “the scope of what is missing”. What was unknown was (he accepted) the “duration, pervasiveness and volume of the hacking”, or the “boundary conditions”. I think that that is what he meant by scope. He accepted that the principle could be applied to make a finding of fact in order assess damages, but it could not be used to “create the scope of what is missing”.
- It is not clear to me quite what he meant by that. He said that his point was made by the judgment of Sir Andrew Morritt V-C in Zabahi v Janzemini & Others  EWCA Civ 851. That case involved a claim for some jewellery passed to the defendant and not returned. In order to assess damages the court had to value the jewellery which (a fortiori) was not available to be valued. In the course of his judgment Sir Andrew said:
“30. So I pass to the second limb of the second ground, namely the proper application of Armorie v Delamirie. Blackburne J referred to it in paragraph 285 of his judgment but it is unclear to me whether and to what extent he applied it. In Armorie v Delamirie a chimney sweep’s boy took ‘a jewel’ which he had found to a goldsmith for a valuation. The goldsmith’s apprentice removed the stones from their socket, offered the sweep’s boy three halfpence and when the offer was refused merely handed back the socket. The sweep’s boy sued the goldsmith for damages in trover. Several valuers gave evidence as to the value of jewels of a size to fit the socket. Pratt CJ directed the jury that:
“…unless the defendant did produce the jewel, and show it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages.”
- Such a presumption cannot be of unlimited application. As I pointed out, with the agreement of the other two members of the court, in Malhotra v Dhawan  Med.L.R. 319, 322 the principle must be subject to, at least, the following limitations:
“First if it is found that the destruction of the evidence was carried out deliberately so as to hinder the proof of the plaintiffs claim then such finding will obviously reflect on the credibility of the destroyer. In such circumstances it would enable the court to disregard the evidence of the destroyer in the application of the presumption. That is not this case.
“Second, if the court has difficulty in deciding which party’s evidence to accept then it would be legitimate to resolve that doubt by the application of the presumption. But, thirdly, if the judge forms a clear view, having borne in mind all the difficulties which may arise from the unavailability of material documents, as to which side is telling the truth I do not accept that the application of the presumption can require the judge to accept evidence he does not believe or to reject evidence he finds to be truthful.”
- In this case the difficulty in assessing the value of the Jewelry is due to the dishonest evidence given by both sides. A presumption against either is matched by the equal and opposite presumption against the other. So I do not think that the principle can be applied to the facts of this case for that reason alone. But, equally, there must be some limit on the extent of the presumption. In Armorie v Delamirie the socket from which the stones had been removed was available to indicate the size of stone required and the evidence of the expert valuers was, I assume, directed to the value of stones required to replace those taken. No doubt they testified to a range of values and the jury, as directed, took the top of the range. But, on the conclusions of Blackburne J in this case there are no similar parameters, save that the jewelry comprised diamonds mounted in gold, by which the extent of the presumption may be restricted. Without such parameters an application of the principle would lead to little more than guesswork. In my view for that reason too the principle of Armorie v Delamiriecannot be applied without some limitation in this case. But I do not think that the judge did so. It is clear from what he said in paragraph 285 that he tempered the principle, but then applied it so tempered only as a check on the conclusion he expressed in paragraph 282. I do not accept that this ground is any reason for us to interfere with the judge’s conclusion.”
- The emphasis is Mr Nicklin’s – he seemed to suggest that it supported his limitation on the application of the principle. If he means thatArmory v Delamirie has to operate within some evidential boundaries then that is obviously right. Thus in Amory itself, the principle would not allow the jury to find that something the size of the original Koh-i-Noor was missing. The jury had the size of the mount to go on as a starting point. And even if it did not, then it could still not find that that a diamond of that size was missing, because no other diamond of that size was known and it would be perverse to assume that the ring in that case contained another. To that extent Mr Nicklin is right. He would also be right to say that Amory does not justify guesswork or pure speculation. But he is wrong when he seems to say that those limitations mean that the Armory principle cannot be used to find the “duration, pervasiveness and volume of the hacking”. Those are matters which are central to the inquiry which I have to conduct and whose details were deliberately concealed by acts of the servants or agents of the defendant. They go to the extent of liability. They operate within “boundary conditions” which are defined by the evidence. There is evidence as to the practices of the newspaper from those who did it; there is evidence as to the starting point of the activities; there is inferential evidence from the phone data as to its sudden diminution on the date of the arrest of the other journalists. Within those (and other) parameters there is plenty of legitimate scope for the operation of the principles. It will not (if properly confined) amount to pure guesswork.
- Nor do I accept a submission by Mr Nicklin to the effect that the Armory priniciple is confined to findings of fact which are required to assess damages, though that may be a frequent area of application. There is no reason in principle why it should be so confined. But in any event that is, in essence, the purpose for which it is to be used in the present case, and it matters not that technically each hack was a separate wrong. The extent of the wrongdoing, which goes to damages, has been concealed by acts of the defendant, and there is no justification for excluding the application of the principles in relation to the inquiry as to that extent.
- Mr Nicklin’s submissions all flow from a misappreciation of what the Armory v Delamirie line of cases is all about. The principles flowing from Armory v Delamirie are principles relating to how the court should assess evidence and find facts. They are evidential points designed to govern and assist the process of finding facts when that process has been obstructed by the acts of one of the parties. The facts which might be found in that way are not, as a matter of principle, limited to any particular kinds of facts, or facts relating to any particular area of inquiry. They are facts. Accordingly the principles can be used to assess, for example, the scope and nature of the hacking that went on in terms of period and frequency, and they can be used to assist in assessing the likelihood of an article having its source in phone hacking in the few instances where that is in dispute in these cases. I have borne that in mind.
Inferences from a failure to call witnesses
- Mr Sherborne invoked the principle that in certain circumstances an adverse inference can be drawn from a failure to call witnesses whom it would be expected would be called to support a party’s case. Bearing in mind the admissions in this case, the historical nature of much of the evidence and the fact that a number of potential witnesses are under police investigation, and bearing in mind the evidence that is available, I do not think that there is much scope for these sort of inferences in this case.
Other factors relevant to evidential findings
- The events upon which these claims are based took place some considerable time ago. That means that some of the recollections of the witnesses are sometimes generalised and specific incidents are likely, in some cases, to have merged into general perceptions. That may make it harder to identify particular incidents that underpin these claims. For example, witnesses could not remember specifically all messages that were left for them, or that they left for others. Sometimes they could only speak of the likelihood of these events happening. That is understandable. The fact that these actions are being bought so long after the event is attributable to the concealment of the activities at the time, and the subsequent concealment and denials. In those circumstances the claimants are entitled to more leeway in assessing the probabilities of events. That does not mean to say that they can make things up and have them accepted. It means that I should be much more ready to accept matters of reconstruction and the like than might otherwise have been the case. “
OTHER POSTS ON THIS ISSUE
- Durrant case back in the reports: what presumptions should a judge draw when a party is debarred from calling witnesses
- The Local Government Lawyer “Silence is not necessarily golden”.
- Gordon Ramsay and witness evidence: absence of key witnesses does not lead to turning up of the heat
- Inferences to be drawn from silence: the views of the Supreme Court
- Absent witnesses are not necessarily decisive: Western Trading considered
- More on adverse inferences from absent witnesses: a clinical negligence case.
- Absence of key witnesses does not lead to turning up of the heat.
- Inferences to be drawn from silence: the views of the Supreme Court.