WHAT INFERENCES SHOULD THE JUDGE DRAW WHEN A WITNESS CLAIMS PRIVILEGE AGAINST SELF-INCRIMINATION?

The judgment of Mr Justice Nugee in Clydesdale Bank plc -v- Stoke Place Hotel Ltd (in administration) [2017] EWHC 181 (Ch) is another one of those cases we will look at twice.  Both posts will be about the judge’s assessment of witness credibility.  Here we look at the judge’s approach to the defendant’s evidence when the defendant claimed privilege against self-incrimination and the factors that played a part in the overall assessment of of the defendant’s evidence.

KEY POINTS

• When a witness in a civil case refuses to answer questions on the grounds that it would incriminate them the court would not draw adverse inferences in relations to their evidence (since that would undermine the privilege).
• In the absence of any answer, however, the court court has no explanation from the defendant on such matters.
• The court would, therefore, come to factual explanations in the absence of an explanation from the witness

RELATED POSTS: INFERENCES DRAWN FROM ABSENT EVIDENCE

• Adverse inferences not drawn when witnesses are silent: another example
• Civil evidence: absent doctor does not lead to an adverse inference.
• 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.