PROVING THINGS 4: WITNESSES WHO JUST AREN'T THERE
We have looked at three recent cases where there was simply not the evidence at court to prove the case. In Caliendo -v- Mischon De Reya  EWHC 150 (Ch) there is a whole section of the judgment devoted to absent witnesses.
- This part of the judgment commented on the surprising absence of a large number of witnesses from both sides.
- In some cases the absence of witnesses (and key documents) led to the drawing of adverse inferences against the party who failed to call those witnesses at trial.
The claimants brought an action against the defendant alleging professional negligence. The action failed for a number of reasons, including a failure to prove breach of duty and a failure to establish damages.
THE JUDGMENT IN RELATION TO MISSING WITNESSES
Missing witnesses on the Claimants’ side
According to Mr Caliendo, Mr Calvo is an Italian actor and TV presenter who speaks English. On Mr Caliendo’s own account, in August 2007 Mr Calvo acted as Mr Caliendo’s translator during a number of important meetings and telephone conversations with Mr Steele and also translated emails for him. Moreover, Mr Calvo was described in a number of contemporaneous documents as “Mr Caliendo’s assistant”. Mr Caliendo gave evidence that Mr Caliendo had seen Mr Calvo as recently as September 2015, that at that time Mr Calvo was alive and well, and that Mr Caliendo could call him at any time. No explanation was given as to why the Claimants had not called Mr Calvo as a witness.
Eric Manasse was only mentioned by Mr Caliendo once in passing in his written evidence, but was frequently mentioned by him in his oral evidence. Eric Manasse was another football agent based in Monaco. Mr Caliendo described Eric Manasse as a “legal consultant” who worked a lot with Mr Caliendo’s organisation. It does not appear that Eric Manasse, as opposed to his brother Donald with whom Eric shared an office, was legally qualified, however. Eric Manasse died sometime ago, and therefore he was not able to give evidence. Donald Manasse was instructed by Mr Caliendo in relation to the Transaction between at least 17 November 2008 and 14 July 2009, but this was well after the events which gave rise to the present dispute.
Paulo Mina, Andrea Primicerio, Laura Murgia and Maria Tomassini appear to have been respectively the founder or principal, a senior employee and two more junior employees of AccounTrust Ltd (referred to in some documents as AccounTrust plc) and/or T&F Ltd and/or T&F Financial Ltd and/or T&F Tax & Finance SA (“T&F SA I”) and/or T&F Tax and Fiduciary SA (“T&F SA II”). AccounTrust was founded in 2002. It is based in Mayfair, London and currently describes itself as “a UK chartered accountancy practice, which provides a wide range of accounting, taxation, compliance and business advisory services to UK and overseas clients”. T&F Ltd, T&F Financial Ltd, T&F SA I and T&F SA II (collectively “T&F”) appear to be tax and financial advisors based in Mayfair, Mayfair, Lugano and Costa Rica respectively. AccounTrust and T&F appear to be part of the T&F Group, which currently describes itself as “a leading provider of international tax consultancy and trust services to corporate groups, businesses, entrepreneurs, expatriates, private individuals and families”. It appears that Mr Mina, Mr Primicerio, Ms Murgia and Ms Tomassini were all Italian (hence a number of the documents emanating from the T&F Group are in Italian) and that at least Ms Murgia and Ms Tomassini also spoke English. Counsel for the Claimants told me on instructions that the T&F Group had declined to cooperate with his clients, but no evidence was adduced as to the Claimants’ attempts to obtain evidence from any of the relevant witnesses. I would add that, in June 2006 and June 2008 Mr Mina, and in August 2007 Ms Murgia and Ms Tomassini, appear to have been based in Mayfair. If that is still the case, then their attendance could have been compelled by witness summons. Furthermore, Mr Primicerio is recorded at Companies House as being resident in the United Kingdom.
Mark Buckley was a solicitor at Fladgate Fielder, a firm instructed by the T&F Group shortly before the completion of the Transaction, and continues to be a partner in that firm. No explanation was given as to why he had not been called, but I accept that his role was relatively peripheral and that there might well have been a problem with privilege in the absence of cooperation from the T&F Group.
Raffaele De Riu, Patrizia Pighini, Ramon Dias and Zeno (I assume that this is the Romanian football player) were, like Mr Dunga, friends and/or associates of Mr Caliendo’s. In the case of Ms Pighini, she worked for IPC at least in 2006. As described in more detail below, and as Mr Caliendo accepted in cross-examination, despite not having mentioned it in his main (second) witness statement and having only referred to it in passing in his fourth witness statement, these people were Mr Caliendo’s financial “partners”, in as much as Mr Caliendo invested their money in QPRH on their behalf. No explanation was given as to why none of them were not being called as witnesses. This is omission is most significant in relation to Mr De Riu for reasons that will appear.
Gualtiero Trucco is another Italian based in Monaco who appears to have been an associate of Mr Caliendo and Mr Zanotti. He was a director of QPRH from 10 November 2004 to 25 November 2005, representing Wanlock. As explained below, he was also involved in an attempt to attract investment into QPRH in mid 2007. No explanation was given as to why he was not called as a witness, although it is fair to say that his involvement appears to have been relatively peripheral.
Barbara Carrara was Mr Caliendo’s secretary at IPC for a number of years until 2012. She spoke English, and frequently translated and sent documents and messages for Mr Caliendo. (Thus, when I refer to Mr Caliendo sending emails, they were generally sent by Ms Carrara on his behalf.) A particular matter which Ms Carrara would have been in a position to shed light on is the manipulation of the QPRH cash flow sheet (as to which, see paragraph 498 below). No explanation was given as to why she was not called.
Missing witnesses on Mishcon de Reya’s side
At the relevant time, Mr Steele was a solicitor, a partner in Mishcon de Reya’s Real Estate Group and a lifelong QPR fan. Mr Steele appears to have been treated as a non-executive director of QPRH for a period in 2007, but he was never formally appointed as a director of the company. Mr Steele was expelled as a partner of Mishcon de Reya on 19 September 2008. After that, Mishcon de Reya brought a civil claim against him which commenced with the obtaining of a freezing injunction and a search order. On 5 December 2011 Mr Steele was convicted on two counts of conspiring with another to use false instruments and to commit fraud by false representation after a trial at Southwark Crown Court. He was sentenced to a total term of 5½ years (reduced on appeal to 4 years 4 months). Three of the Crown witnesses at Mr Steele’s trial were from Mishcon de Reya. As I understand it, both the civil claim and the convictions related to an unrelated fraud committed by Mr Steele in 2008. He was made bankrupt on 5 October 2011. He was struck off the Roll of Solicitors on 22 August 2012. In May 2015 Mishcon de Reya served a witness statement of Mr Steele on the Claimants and indicated that they would call upon him to give evidence at trial, but in October 2015 Mishcon de Reya informed the Claimants that they would not in fact be calling to Mr Steele to give evidence. Counsel for Mishcon de Reya explained that Mishcon de Reya had decided not to call Mr Steele because of the obvious risk of hostility by Mr Steele to Mishcon de Reya given the civil claim and Mishcon de Reya’s support for the criminal prosecution. I have no difficulty in accepting that explanation.
At the relevant time Jason Kallis was a solicitor in Mishcon de Reya’s Real Estate Group and a QPR fan, but he is no longer with Mishcon de Reya. Mr Kallis also appears to have been treated as a non-executive director of QPRH for a period in 2007, but was never formally appointed as a director of the company. Counsel for Mishcon de Reya explained that he had not been called because he had not been involved with the Transaction during the crucial period. That I accept, but he would have had some relevant evidence to give.
Mr Paladini is an Italian who speaks good English. He was a friend of Mr Caliendo’s from 1983, when he worked for a period as Mr Caliendo’s interpreter. After that, Mr Paladini became a football agent. As described in more detail below, it was Mr Paladini who persuaded Mr Caliendo to invest in QPRH in May 2004. Mr Paladini was a director of and (through his company Moorbound Ltd, of which his wife Olga was a director) a shareholder in QPRH. According to Mr Caliendo, the relationship between Mr Paladini and himself became strained in May and broke down in the first week of August 2007. Mr Cooke’s evidence was that he was not aware of any falling out between them in the period from June to August 2007. There is one document suggesting that they fell out in about mid August 2007, but the same document suggests that they quickly made up. In his oral evidence, Mr Caliendo went so far as to accuse Mr Paladini of conspiring with Mr Steele against him, a matter I shall revert to below. Despite this, he revealed that he had met Mr Paladini for coffee about a month or so before the trial. In May 2015 the Claimants served a witness statement made by Mr Paladini and Mishcon de Reya served a witness summary in relation to him, but in the event neither side chose to call him to give evidence. Counsel for Mishcon de Reya told me that Mr Palidini had not cooperated with his side, which is consistent with the service of a witness summary. Counsel for the Claimants made no real attempt to explain his side’s failure to call Mr Paladini.
Nick De Marco was, and remains, a barrister specialising in (among other things) sport law and a QPR fan. Mr De Marco was appointed as a director of QPRFC on 14 February 2007 and of QPRH on 24 July 2007. He ceased to be director of QPRH on 20 August 2007, and it is probable that he ceased to be a director of QPRFC at about the same time. Counsel for Mishcon de Reya explained that he had not been called because he had not been involved with the Transaction during the crucial period. That I accept, but he would have had some relevant evidence to give.
As explained in more detail below, Angela Duquemin recruited Mr Cooke to QPR and worked alongside him in its Financial Department during the relevant period. No explanation was given as to why she had not been called, but it fair to say that her evidence would probably have been largely duplicative of that of Mr Cooke.
Should an adverse inference be drawn from the failure to call witnesses?
Both sides invited me to draw an adverse inference from the other side’s failure to call witnesses, applying the principles summarised by Brooke LJ in Wisniewski v Manchester Health Authority  PIQR 324 at 340. The Claimants relied in particular on Mishcon de Reya’s failure to call Mr Steele, and Mishcon de Reya relied in particular on the Claimants’ failure to call Mr Calvo, Mr Paladini and any witness from the T&F Group. In my view the Claimants’ failure to call relevant witnesses, and in particular Mr Calvo or any witness from the T&F Group, is more significant than Mishcon de Reya’s failure to call Mr Steele. Given my conclusion as to Mr Caliendo’s reliability as a witness, however, the main significance of the Claimants’ failure to call relevant witnesses is that there is no evidence from those witnesses to corroborate Mr Caliendo’s account.
Should an adverse inference be drawn from the Claimants’ failure to give disclosure?
Counsel for Mishcon de Reya submitted that an adverse inference should also be drawn from the Claimants’ failure to give proper disclosure, in particular of documents recording the obtaining of funds by Mr Caliendo from his partners, his arrangements with those partners and his accounting to them. Counsel for the Claimants rightly accepted that on the evidence the Claimants’ disclosure was deficient in this respect. In my judgment this is a further reason why Mr Caliendo’s evidence must be treated with considerable caution.
Counsel for Mishcon de Reya also relied upon the Claimants’ failure to give disclosure of documents emanating from the T&F Group. As counsel for the Claimants explained, however, the Claimants did give disclosure of relevant documents from four files of documents provided by the T&F Group. In addition, Mishcon de Reya made an application for third party disclosure against the two English companies which the Claimants supported, but which yielded little more. I am not satisfied that it has been established that there are relevant documents in the possession of either the Claimants or the T&F Group which have not been disclosed. There is a reason to believe that at least one document did exist which has not been disclosed, but it would not be surprising if it had been destroyed or mislaid during the intervening period
Mishcon de Reya’s files
Given the issues in this case, I would have expected Mishcon de Reya to call a witness to explain its filing system at the time and what could or could not be deduced from the file numbers which appear on the Mishcon de Reya documents which have been disclosed. I would also have expected such a witness to deal with matters such as time sheets and billing. No such witness was called. I was informed by counsel for Mishcon de Reya, however, that these matters had been considered during the disclosure process. As I understand it, Mishcon de Reya satisfied itself that it had disclosed all discloseable documents, but discovered that at least one of the file numbers quoted in the contemporaneous documents in fact related to a different matter involving a different client.
Counsel for the Claimants did not submit that any inference should be drawn from the absence of evidence of the kind described above. Rather, he drew attention to the fact that only one attendance note had been disclosed by Mishcon de Reya, it appears because only one was made. Futhermore, the only timesheet to which I was referred was one made by Mr McMaster (which identified his client as QPRH). Since I was not shown any fee notes, I presume that no relevant fee notes exist.
- Adverse inferences from missing documents and witnesses: another case to point.
- More on adverse inferences from absent witnesses: a clinical negligence case.
- Durrant case back in the reports: what presumptions should a judge draw when a party is debarred from calling witnesses
- My article in 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
- A failure to disclose can be just as telling as disclosure itself.
Evidence and proof
- Proving things 1: Civil Evidence Act notices will not cut it.
- Proving things 2: evidence to support a claim for damages must be pitch perfect.
- Proving things 3: the complete absence of evidence means the court will not speculate
- Proving things by evidence: another example of an absence of evidence leading to a case failing.
- If you can’t prove it you don’t get it.
- Silence on key issues does not prove your case
- Pleadings proof and evidence.
- Highwaymen, evidence and damages.
- Proving matters by evidence: a lesson from the family court.
- Evidence: proving damages and interest on damages: you can’t sugar the pill and have to prove the loss.
- Witness statements and proving loss of earnings.
- Proof of facts: the basic principles summarised.
- Causation and evidence – a burning problem.
- Making a finding of fraud without evidence 3.
- If findings of dishonesty are to be made then witnesses have to be heard.
- Making findings of fraud without a party being represented 2: a hearing in the administrative court
- Pleading and proving allegations of fraud or dishonesty: useful guidance