ADVERSE INFERENCES FROM MISSING DOCUMENTS AND WITNESSES: ANOTHER CASE TO POINT
We have looked at the decision of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd  EWCA 2264 (QB) several times, firstly in relation to witness evidence and then in relation to the use of social media in litigation. However there were arguments as to what inferences the judge should draw from the absence of evidence and the extent and some interesting discussions in relation to causation and liability.
“The philosophers might enjoy this sort of metaphysical conundrum, but it is lost on the common lawyer.”
The claimants were seeking damages for personal injury which were allegedly caused by a cloud of smoke enveloping an area around Kirkby in June 2011. There were issues relating to the cause of the fire and the inferences that the court should draw from the fact that the defendant had not retained certain evidence.
49. Mr Redfern also relied on the fact that in June 2011 Dr Jowett had advised the Defendant by email to retain electronic data relating to the firefly system, from which it should have been deduced that there was a need to retain electronic documents generally. However, I do not draw that inference at all: Dr Jowett was not interested in or impliedly referring to bunker sensor data, and in June 2011 the Defendant could not have anticipated these claims, or that the levels in the bunkers would be an issue.
50. At this stage, it is convenient to address Mr Redfern’s submission that I should draw inferences adverse to the Defendant regarding the contents of the bunkers because it has lost or withheld relevant information, namely the records from the SCADA system relating to the data sent back by the sensors. He relied on the well-known case of Armory v Delamerie  1 Strange 505 which has recently been considered by Mann J in Gulati and others v MGN Ltd  1482 (Ch). In that case Mann J was considering breach of privacy claims by victims of phone-hacking. He decided that the Armory principle was relevant to his judicial task because on the facts of the case before him it was germane to the scope of the Defendant’s wrongdoing, which was itself relevant to the scope of the invasion of privacy, and concomitantly relevant to damages . Further, at  Mann J explained that Armory encapsulated an evidential principle relating to how the court should assess and find facts when that process has been obstructed by the acts of one of the parties.
51. Mr Redfern submitted that the Defendant, both through Mr Hayes and more generally, has acted reprehensively in failing to preserve the SCADA data before deletion, and/or failed to interrogate the main server in Portugal. On that footing he invited me to draw the inference that the bunkers were in fact at maximum operational capacity, which realistically (from the Claimants’ perspective) means 3,000 Te.
52. Persuasively though they were presented, I cannot accept Mr Redfern’s submissions. There are two answers to them. First, I do not accept that the Defendant should have preserved the SCADA data before the temporary log files were deleted, and/or before November 2012. Assuming that the Defendant’s solicitors advised its client to retain relevant documents, including data, when this claim was first intimated, the Defendant’s computer system in the UK was sold at an early stage in the litigation. It would have required considerable knowledge and “joined up thinking” to have concluded that these systems should have been interrogated, and temporary log files reconstructed, before they were transferred to the purchaser. By the time the Defendant should reasonably have been alert to this recondite issue, it was too late. Overall, the Claimants have fallen short of demonstrating the sort of reprehensible conduct on the Defendant’s side which would justify the drawing of the adverse inference sought; and, in any event, the requisite causative link between conduct and the loss of electronic documents has not been established.
53. Secondly, the SCADA data, even if available, would have thrown little further light on the actual contents of the bunkers. The computer may have generated a percentage figure from the sensor data but it was, at best, only indicative. The clear evidence from Messrs Whitrow and Callaghan, which I accept, is that these data were not relied on. The only reliable means of establishing the bunker levels, and that was imprecise too, was to take a look. Operators and managers would not have taken the trouble to do this if their efforts were supererogatory. Furthermore, looking again at the diagram at paragraph 12 above, it is quite obvious that the inferences to be drawn from a series of distances from sensor to individual peaks were likely to be imprecise and inaccurate, in relation to a process which was dynamic. In the end, Mr Redfern had to submit that I should “draw an inference from an imponderable”. The philosophers might enjoy this sort of metaphysical conundrum, but it is lost on the common lawyer.
54. Mr Redfern advanced a separate submission regarding the Defendant’s comportment in relation to its disclosure obligations generally. This was less persuasive, given my judgment at the pre-trial review on 5th May 2015. Mr Redfern did not make sustained submissions about the shift managers’ logs, and unless the Defendant is wholly misleading the court, the position must be that they are no longer available. I do accept, however, that the Defendant – through Mr Hayes, is remiss in failing to include these logs, as well as the temporary log files in its August 2014 Disclosure Statement, under the rubric of documents no longer in existence.
55. It is also convenient to deal with Mr Redfern’s yet broader point, advanced more in cross-examination than at the end of the trial, that I should draw general inferences adverse to the Defendant flowing from its poor safety record, the number of fires, the inherent risk and the dryness of the work environment. Mr Redfern submitted that this fire was reasonably foreseeable, and that issues of foreseeability and causation are, by their nature, intrinsically intertwined. I cannot accept this submission either. The Defendant does not dispute that the Claimants’ alleged losses are reasonably foreseeable. I do not accept that foreseeability and causation can be elided, or (to put the point slightly differently) that the degree of the Defendant’s fault is capable of being relevant to the issue of causation. These are, and remain, discrete concepts. However badly the Defendant may have behaved, the Claimants still have to prove their cases to the requisite standard, and their task is by no means attenuated or abbreviated by the extent or quantum of breach of duty. The instant case is wholly different from the situation analysed by Mann J in Gulati (at  of his judgment) where the scope of wrongdoing bore on the quantum of damages, and also differs from the context of Viscount Simonds’ dictum inNicholson v Atlas Steel Foundry & Engineering Co. Ltd  1 WLR 613, 618 (once breach is admitted, it requires “little further to establish a causal link”).
56. Mr Redfern advanced a separate submission on the drawing of adverse inferences based on a case extremely familiar to him, Wisniewski v Central Manchester HA  PIQR 324, 340. He submitted that I should draw inferences adverse to the Defendant flowing from its failure to call relevant witnesses, namely Mr Sharkey and Mr Mitchell. I cannot conclude that these men could have given me no relevant evidence, but I do conclude that their evidence could not have assisted me significantly. Mr Mitchell could have spoken to the capacity of the bunkers, but this issue is no longer in dispute, pace Dr Mitcheson’s arithmetical error in this second report. As I have already said, Mr Sharkey could not improve on Mr Pybis’ evidence, particularly in circumstances where the shift managers’ logs are no longer available.”
- 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.