ABSENT WITNESSES ARE NOT NECESSARILY DECISIVE: WESTERN TRADING CONSIDERED

January 26, 2015 · by · in Civil evidence, Civil Procedure, Witness statements

Several recent posts have looked at the inferences the court can draw in circumstances where a witness is not called or is silent on key points.  This issue was mentioned  in a judgment today by H H Judge Mackie QC in Western Trading Ltd -v- Great Lakes Reinsurance (UK) PLC [2015] EWHC 103 QB.

THE CASE

The claimant was claiming under a policy of insurance. The claim was defended on the grounds that the claimant had no insurable interest and that there was misrepresentation and non-disclosure. The judge rejected the defendant’s arguments.

THE OBSERVATION ON THE “WISNIEWSKI PRINCIPLE”(WHEN THE COURT CAN DRAW ADVERSE INFERENCES FROM THE ABSENCE OF WITNESSES)

The judge made certain observations on this issue at the end of the jdugment

“The Wisniewski principle”

  1. Mr Moxon Browne [representing the defendant]  invokes what he calls “The Wisniewski principle” which he draws from the decision of the Court of Appeal in Wisniewski v Manchester Central Health Authority [1998] PIQR 324. In short the principle is that although cases are decided on evidence, the Court is entitled to draw adverse inferences from the unexplained absence of evidence from witnesses, or in the form of documents, which it would be reasonable to expect might be before the Court. It is always useful to be reminded of the principled base behind the daily task of deciding facts and of doing so not just on the evidence but bearing in mind what further evidence a party might reasonably have been expected to produce. I apply those considerations in this case as in any other. I bear in mind Mr Moxon Browne’s observations about particular points. For example he criticises the absence of Mrs Kaur. She filled out the proposal form but did not identify Property Link as the tenant of the insured premises. He says that in the absence of contrary evidence from her, the Court can infer that the reason for this is that in fact Property Link was not the tenant. But this overlooks the other evidence and the consideration that the court has seen and heard both the landlord, Mr Singh on behalf of the Claimant and the tenant, Sunny who is the governing mind of Property Link. This perceived principle is invoked by both sides. Thus Mr Elkington invites me to draw inferences from the absence of anyone from JRP who took the decision whether or not to cover the risk. As in any case I bear all these factors in mind but do not extend an already overlong judgment by explicitly addressing every aspect.

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