DRAWING ADVERSE INFERENCES WHEN WITNESSES ARE ABSENT: COURT OF APPEAL DECISION TODAY: COURT HAS A DISCRETION AS TO THE INFERENCES TO BE DRAWN

I am grateful to barrister  Luka Krsljanin for sending me a copy of hte Court of Appeal decision today in Manzi -v- King’s College NHS Foundation Trust [2018] EWCA Civ 1882. The Court rejected an argument that the trial judge erred in failing to draw adverse inferences when a witness was not called to give evidence.  Here I look at the judgment in relation to adverse inferences. A later post will look at the judgment in relation to the evaluation of contemporaneous notes.

“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”.

THE CASE

The claimant brought an action in clinical negligence alleging negligence in failing to remove part of the placenta after childbirth.  The crucial issue was the size of the placenta which was retained.  A doctor had made a note recording what was said to the claimant after the operation. That doctor , Dr Hooper, was not called to give evidence, the claimant argued that this should lead to the court drawing adverse inferences.  The trial judge rejected that argument,  the decision was considered in a previous post on this blog.  The claimant appealed to the Court of Appeal.

THE JUDGMENT ON APPEAL

The appeal involved, primarily, arguments relating to the trial judge’s assessment of the evidence.

THE ADVERSE INFERENCES POINT

The first part of the judgment deals with the claimant’s arguments in relation to the evaluation of factual evidence. The Court then considered the second point.
“Issue 2 – failure to draw an adverse inference:
28. The second issue has a resonance in the way it was put with the way the reliability of clinical records was presented by the claimant, namely a desire on her part to derive a principle from case law which she seeks to characterise as being obligatory in its application. The claimant submits that it is a basic tenet of natural justice that it is unjust for a claimant to have to defend herself in the civil courts against calculated silence. This is particularly so in clinical negligence cases where there is an asymmetry between the knowledge of the patient and their doctors. The claimant relies on Wisniewski v Central Manchester Health Authority [1998] PIQR P324.  In that case Brooke LJ derived four principles from previous case law:
(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.
29. The claimant submits that the judge should have found that the four principles articulated by Brooke LJ in Wisniewski were satisfied. The evidence of Dr Hooper, she says, was material in that it would have substantially strengthened the claimant’s case. There was a case to answer on that issue and no explanation was given for Dr Hooper’s absence.  The defendant submits that the judge understood and applied Wisniewski.
30. There are three aspects to the claimant’s submissions that demonstrate the difficulty that she has on this issue. First, 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”.  An appellate court will be hesitant to interfere with the exercise of such a discretion given that it is being exercised in the knowledge of all the nuances of evidence that are in the knowledge of the judge who receives that evidence. Second, the judge in this case did not conclude that an absent witness had to be central to the case, he merely and correctly identified that the doctor in Wisniewski was central to that claim as the person who had failed to defend his clinical judgment.  By comparison, the judge decided that Dr Hooper’s role and hence evidence was tangential for the reasons I have summarised at [26] above.  Third, there was an explanation for absence and that was a decision on proportionality grounds taken by the defendant i.e. this was not a case where a defendant or witness deliberately prevents or avoids the admission of evidence that would undermine their case.
31. There is also a further difficulty that the claimant must face. On 21 August 2015 Master Roberts gave case management directions.  The claimant sought a direction for disclosure of information about Dr Hooper but did not seek an order that she file and serve a witness statement.  They could have asked for the latter.  If the claimant was of the view that Dr Hooper’s evidence was as important to her case as is now asserted and that an adverse inference would be appropriate in Dr Hooper’s absence, they could have asked for a direction which contained the warning that an adverse inference may be drawn if the evidence was not provided.  Even without such a direction, the claimant could have made arrangements to obtain evidence from Dr Hooper themselves. 
32. If and in so far as the claimant submits that inferentially the defendant was bound by practice or by other non-specific case management directions to file and serve a witness statement from Dr Hooper simply because she was one of a number of people who had evidence, however tangential, relating to the ‘relevant treatment’, I have to disagree. That would be a disproportionate way of preparing litigation.
33. For these reasons I came to the conclusion, subject to my Lord’s concurrence, that the appeal should be dismissed.