ABSENT WITNESSES DO NOT LEAD TO ADVERSE INFERENCES: ARGUMENT WOULD LEAD TO NEW “COSTS AND TERROR” IN LITIGATION

June 21, 2017 · by · in Civil evidence, Witness statements

In Astex Therapeutics Limited -v- Astranzenca AB [2017] EWHC 1442 (Ch) Mr Justice Arnold considered, and robustly dismissed, an argument that the court should draw adverse inferences from absent witnesses.

“I find it extraordinary that it can be suggested that an adverse inference should drawn against a party because that party has not applied for letters rogatory to be sent to a foreign court to compel a witness resident abroad to give evidence. That would add a new cost and terror to litigation in this country, and I decline to do so”

THE CASE

The parties were in dispute about whether certain compounds were “Collaboration Compounds” within the terms of an agreement. This led to each party calling a number of witnesses. The judge was considering the conclusions to be drawn when the defendant did not call certain witnesses.

Missing witnesses
  1. A number of potential witnesses on both sides were not called. Astex did not call any of its scientists who worked on the BACE project other than Dr Murray, and in particular did not call Dr Miles Congreve or Dr Gianni Chessari despite the fact that at one stage considerable reliance was placed by Astex on laboratory notebook entries of theirs. No explanation was given for this, but counsel for AstraZeneca did not suggest that any adverse inference should be drawn from it, and in any event the points were not pursued by Astex.
  2. AstraZeneca employed a large number of people on the BACE project at different times and in different places. Understandably, AstraZeneca did not attempt to call all of them, which would have been wholly impractical as well as disproportionate. Counsel for Astex drew attention in his written opening submissions to the fact that AstraZeneca had not called Johanna Fälting, Mark Farmery, Patrik Renblad or Michael Vestling. None of those persons remains employed by AstraZeneca and they are all resident outside the United Kingdom. Counsel for Astex nevertheless submitted in his closing submissions that I should draw an adverse inference from AstraZeneca’s failure to adduce evidence from Dr Fälting, Dr Farmery and Mr Renblad, despite the fact that AstraZeneca contends that all three were mistaken in believing that CD1, and that Dr Fälting and Dr Farmery were mistaken in believing that CD2, was a Collaboration Compound. The grounds upon which he submitted that the adverse inference should be drawn were that (i) AstraZeneca had not established by evidence that the individuals had declined to co-operate with them and (ii) AstraZeneca had not established that they were resident in countries which did not have procedures for taking evidence in support of foreign witnesses.
  3. I do not accept this submission. So far as point (i) is concerned, AstraZeneca’s solicitors informed Astex’s solicitors in correspondence that AstraZeneca had contacted Dr Fälting, Dr Farmery and Dr Vestlng, but they had declined to be called as witnesses, while it had not contacted Mr Renblad. I see no need for this to be confirmed by a witness statement. Moreover, Astex’s solicitors revealed that they had contacted Dr Fälting and Dr Farmery, but both had declined to assist. That tends to confirm that they did not want to be involved. As for point (ii), I find it extraordinary that it can be suggested that an adverse inference should drawn against a party because that party has not applied for letters rogatory to be sent to a foreign court to compel a witness resident abroad to give evidence. That would add a new cost and terror to litigation in this country, and I decline to do so. In any event, I do not see why an adverse inference should be drawn in this case: it is clear from the evidence that Dr Fälting and Dr Farmery believed that CD1 and CD2 were Collaboration Compounds, but it is also clear that they did not have first-hand knowledge of the derivation of CD1 and CD2, still less did they have access to all the contemporaneous documents. Given that I have evidence from witnesses called by AstraZeneca who did have first-hand knowledge, and access to the contemporaneous documents, an explanation by Dr Fälting and Dr Farmery as to the reasons for their belief would be of little weight. Furthermore, as discussed below, the key decision maker in relation to CD1 was Dr Angst. As for Mr Renblad, it is unlikely that he had any real knowledge about the status of CD1. As for CD2, no payments were made in relation to it, and Dr Budd, Dr Srinivasan and Mr Johnston all gave evidence about the communications which AstraZeneca made to Astex about it.”

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