DURRANT CASE BACK IN THE REPORTS: WHAT PRESUMPTIONS SHOULD A JUDGE DRAW WHEN A PARTY IS DEBARRED FROM CALLING WITNESSES?

The case of Durrant  -v- Chief Constable of Avon & Somerset Constabulary [2013]  EWCA Civ 1264 was well known as one of the first reports on sanctions. The defendant police authority was debarred from calling witness evidence as a result of failure to comply with court orders.  The case has now gone to trial and is reported at [2014[ EWCA 2922 (QB)

THE ISSUES

The claimant was bringing an action based on the conduct of police officers who arrested her at a taxi rank.  The Court of Appeal had confirmed that the defendant could not adduce evidence.

HOW DOES THE COURT APPROACH THE ISSUE OF EVIDENCE WHEN ONE PARTY IS DEBARRED FROM ADDUCING EVIDENCE

The judge had to consider the issue of what inferences can be drawn when a party is debarred from adducing evidence. Should an adverse inference be drawn or should the court consider the evidence that might have been and hesitate in making adverse findings. The judge rejected both these approaches.

“140. In some cases adverse inference may be drawn from the absence or silence of a witness. The Claimant drew my attention to                       Wisniewski –v- Central Manchester Health Authority [1998] PIQR P324 CA, Brooke LJ:

“From this line of authority I derive the following principles in the context of the present case. (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”.

1. The present case is unique in my experience, in that it is known to the court that there are witness statements, and that the Defendant would wish those statements to be in evidence and oral evidence given by their authors. There is no suggestion that the police officers who gave those witness statements were unwilling to attend to give evidence.
2. In my judgment it is therefore not appropriate to draw adverse inference against the individual police officers, or the Defendant, from the simple absence of statements or live evidence from those officers.
3. Mr Payne goes further and argues that the allegations made by the Claimant are serious and sensitive and given that the Defendant is not at liberty to call evidence the court should not make, or should hesitate to make, findings in favour of the Claimant where there is the possibility of alternative explanation. He contends that if the court makes findings adverse to the police, or to individual police officers, there will or may be serious consequence to them. In my judgment I am required to arrive at findings upon the evidence which I have, not the evidence which I might have had but do not have because of procedural default on the part of the Defendant. If the court makes findings adverse to the police, doubtless any individual police officer will be able to protest that he or she has been deprived of the opportunity to contest the allegation insofar as it reflects personally on himself or herself. The Court of Appeal made the ruling that the Defendant was not to be at liberty to call evidence and must have been fully aware of the inevitable consequence of that.”

A PARTY DEBARRED FROM CALLING EVIDENCE MAY NOT, NECESSARILY, HAVE INFERENCES DRAWN AGAINST THEM

The general rule is that where there is evidence available to a party which that party chooses not to call then the court can, in appropriate cases, draw adverse inferences from that failure (see the discussion in my article Silence is not necessarily golden). However this inference may not necessarily apply when a party has been debarred.  However it is also difficult for a party to make assertions as to the nature of the evidence that could have been called. The court will make findings on the basis of the evidence before it.