IT’S NOT YOUR OPPONENT’S JOB TO POINT OUT OMISSIONS IN YOUR OWN EVIDENCE: A CLOSER LOOK AT ONE ASPECT OF PJSC TATNEFT

One particular aspect of the judgment in PJSC Tatneft v Bogolyubov & Ors [2020] EWHC 3250 (Comm) that warrants closer investigation. That is the claimant’s argument that it did not have notice that the defendants were going to invite the court to draw adverse inferences from the absence of a witness.  This was tantamount to an argument that the defendants owed the claimant a duty to draw attention to its own failure to adduce key evidence.

“…the claimant’s legal team knew there was a risk of an adverse inference being sought if Ms Savelova was not called to give evidence. This is a common feature of commercial litigation. I do not accept the submission from the claimant that any failure to give notice prior to the trial meant that the claimant was unaware of that risk.”

THE CASE

The claimant was seeking permission to adduce new evidence part way through a trial.   One of the arguments (unsuccessfully) deployed was that the defendants had not put the claimant on notice that they would be asking the court to draw adverse inferences arising from the claimant’s failure to provide witness evidence from a potential witness.

THE  JUDGMENT ON THIS ISSUE

The claimant’s argument was not accepted by the judge.

 

  1. It was also submitted for the claimant that the claimant was not given notice that the defendants would invite the court to draw an adverse inference from her failure to give evidence, or that the claimant was not given an opportunity to adduce evidence in response to the request that the court should draw an adverse inference from her failure to give evidence.
  2. In my view, there is no doubt that, as a highly experienced legal team, the claimant’s legal team knew there was a risk of an adverse inference being sought if Ms Savelova was not called to give evidenceThis is a common feature of commercial litigation. I do not accept the submission from the claimant that any failure to give notice prior to the trial meant that the claimant was unaware of that risk. The reliance by the claimant on her alleged conversation with Mr Gubaidullin in the street, for example, and her central role more generally as a Tatneft lawyer, meant that she could be expected to be a key witness on the issue of knowledge. The possibility of an adverse inference was expressly raised by the first defendant, albeit in the context of the preservation of documents.
  3. I do not accept that Tatneft was not given an opportunity to put in evidence by way of explanation to rebut the proposed adverse inference. The answer cannot be that a witness who is previously absent is then allowed to turn up part way through the trial.