INFERENCES TO BE DRAWN FROM ABSENT WITNESSES: RIVA PROPERTIES -v- FOSTER AGAIN

October 21, 2017 · by · in Uncategorized

I am returning (and not for the last time) to the judgment of Mr Justice Fraser in Riva Properties Ltd & Ors v Foster + Partners Ltd [2017] EWHC 2574 (TCC). This time on the issue of the inferences that the court should draw from missing witnesses.

THE JUDGMENT

The judge was considering the defendant’s submission that he should draw adverse inferences from the absence of witnesses for the claimant.

    1. Fosters invites me to draw adverse inferences from the absence of other witnesses to support Mr Dhanoa’s evidence. The court is entitled in some circumstances to draw adverse inferences when witnesses might have given evidence: Wisniewski v Central Manchester Health Authority [1998] PIQR 324. Mr Selby relies upon that case as authority for the proposition, and criticises the Claimants’ failure to call anyone else other than Mr Dhanoa’s daughter. That case concerned the failure of a health authority, in a clinical negligence case brought on behalf of a plaintiff who had suffered irreversible brain damage at birth, to call the relevant doctor as a witness. Having extensively considered all the relevant authorities from 1875 onwards, Brooke LJ stated the following:
“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 the 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 be 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. That case was considered and applied by the Court of Appeal in Society of Lloyd’s v Jaffray [2002] All ER (D) 399 [2002] EWCA Civ 1101, which concerned the well-known Lloyd’s litigation, when Lloyd’s Names (who were underwriting members of the Society) inherited massive losses from earlier accounting periods. The Names brought proceedings alleging deceit, and in summary their case was that Lloyd’s had known about the unquantifiable but massive looming losses, whilst giving the Names the impression that all was under control and that proper reserves had been made. At the trial of what was called the threshold fraud issue, and although witness statements had been served from individuals at Lloyd’s whom the Society might have called as witnesses, a number of them were not in fact called. The Court of Appeal held, applying the principles of Brooke LJ in Wisniewski, the following:
“It seems to us that on aspects where the evidence points in a direction against Lloyd’s in an area which could have been dealt with by Mr Randall the judge should have drawn an adverse inference from Lloyd’s failure to call Mr Randall to deal with it. This does not mean that any allegation that the Names make against Mr Randall must be accepted because he did not give evidence. It simply means that where the evidence points in a certain direction an adverse inference can be drawn from a failure to call the witness to deal with it.”
(at [406] and [407])
    1. It has also been considered and applied by the Court of Appeal in Benham Limited v Kythira Investments Ltd [2003] EWCA Civ 1794 at [26], which concerned a successful appeal against a first-instance judge’s acceptance of a “no case to answer” submission in a civil trial. I considered and applied those authorities in Energy Solutions v Nuclear Development Authority (No.2) Liability [2016] EWHC 1988 (TCC) in the context of a procurement challenge. The principles are dealt with at [319] to [330] and I drew certain adverse inferences in that case at (inter alia) [393] and [790]. However, I stated in that judgment at [323] that it should be noted:
“…..without in any way departing from the statements of principle that apply in this situation generally or applying a different standard, that procurement proceedings have a particular aspect to them that should be borne in mind. This is that there is an express obligation of transparency upon the contracting authority. On occasion, and without in any way shifting the burden of proof, contracting authorities and their evaluators may be required to justify or explain what has been done when evaluating tenders, particularly if a score given on a particular requirement has been changed by the SMEs themselves during the evaluation process. Reasons have to be recorded and the record is important; it helps compliance with the obligation of transparency. Such explanation is made far more difficult for a contracting authority if the directly relevant personnel who were centrally involved in that process are not called as witnesses. This justification or explanation is something that will or may arise if the material available shows a prima facie manifest error. That is probably simply a different way of stating the third of Brooke LJ’s principles in Wisniewski.”
  1. I do not consider that the requisite ingredients are present in this case for me to be justified in drawing adverse inferences from the absence of other professional advisers, or other witnesses, who were not called to give evidence on Mr Dhanoa’s behalf. A witness statement was served from Mr Tiplady, yet he was not called as a witness. Ms Briggs submitted that his evidence as contained in that statement did not really take the case particularly much further, and in any case he had booked a holiday and that is why he did not attend the trial. However, I am unpersuaded that the evidence points in a particular direction against Mr Dhanoa such that I should draw an adverse inference from anyone’s absence in any event, let alone that of Mr Tiplady.
  1. On the two crucial points, namely the budget dispute (the subject of what is called “Breach 1” by Ms Briggs) and the Value Engineering dispute (the subject of “Breach 2”) it is essentially Mr Dhanoa’s evidence on the one hand, partly supported by some contemporaneous e mail references, against that of Mr Stewart, and to a lesser extent Mr Brooker and Mr Hammerschmidt, on the other. This is not a situation where, in my judgment, adverse inferences are required or justified. In any event, the evidence even of the Fosters’ witnesses on these two points moved far closer towards the account of Mr Dhanoa by the time their cross-examination had been completed.”

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