MAKING FINDINGS ON THE BASIS OF THE LIST OF DOCUMENTS ALONE: THE MACKENZIE PERPLEX
There is one aspect of the judgement in Mackenzie v Alcoa Manufacturing (Gb) Ltd  EWCA Civ 2110 that requires a little more attention. That is is the question of how parties, faced with the absence of documents and where those documents may be important, should frame their cases. I am not certain that there is an easy answer to the issue raised, however it is important that litigators are aware of this.
The case was looked at in detail in an earlier post. The Court of Appeal upheld the decision of the trial judge who found for the defendant in an industrial deafness case. Part of the claimant’s case had been that the absence of any documents that showed noise surveys had been carried out should lead to an inference that the defendant was in breach of duty.
BEAN LJ’S OBSERVATIONS ON THE ISSUE OF DOCUMENTS
Bean LJ observed that the case as to the absence of noise surveys had been argued on the basis of omissions in the list of documents.
“In future cases where it is relevant to determine whether a noise survey has been undertaken in the past it would be helpful if both parties addressed that in pre-trial questions about the existence of documents or in the evidence at trial. This would help to avoid a situation where the trial judge is left to deal with the factual finding about whether a noise survey was carried out on the basis only of submissions about lists of documents.”
SO IT MAY BE UNWISE FOR EITHER PARTY TO SIMPLY RELY ON DOCUMENTS ALONE
The judgment refers to “both parties”. A claimant may be best advised to ask this question explicitly prior to trial, a defendant should adduce evidence on this point. It would be interesting to see the way in which this case was pleaded. Presumably the claimant pleaded an absence of noise surveys as an allegation of negligence, it would be useful to know whether the defendant responded with a positive case.