Much of litigation is taken up with the contents of witness statements and their veracity, or otherwise.    However there is an important element in relation to missing evidence and “missing” witnesses.   What inferences should the court draw if a party submits that a key witness for their opponent is missing?  This question was raised in a recent judgment and provides an opportunity for a review of the situation.

“So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances”

KEY PRACTICE POINTS

Every litigator needs a working knowledge of the likely consequences if a witness statement is not obtained or a witness not called. This can have major consquences for your own case, or your assessment of your opponent’s case.

THE RECENT JUDGMENT IN BEGG -v- WOOD

Begg v Wood & Ors [2026] EWHC 2622 (BP) (14 October 2026) HHJ Richard Williams, sitting as a Judge of the High Court.

THE JUDGMENT ON MISSING EVIDENCE AND MISSING WITNESSES

“34. The court may draw adverse inferences from the failure of a party (i) to produce contemporaneous documents that would have otherwise existed, if that party’s oral evidence is correct, and/or (ii) to call as a witness at trial a person who might be expected to give important evidence.

Absence of contemporaneous documentary evidence

35. In Re: Mumtaz Properties Ltd [2011] EWCA Civ 610, Arden LJ said:

“[14] In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present and the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence and the judge may be able to draw inferences from its absence.”

Failure to call a witness of fact to give evidence

36. In Royal Mail Group Ltd (Respondent) v Efobi (Appellant) [2021] UKSC 33, Lord Leggatt said:

“[41.] The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority….is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.”

Overall approach

1. In making my findings of disputed facts in this case, I have had particular regard to the contents of the reliable contemporaneous documents, the undisputed facts including what the parties subsequently said and did, the objective inferences properly to be drawn from those undisputed facts and any missing evidence, and the overall probabilities including by reference to the parties’ motives.”

TEN KEY POINTS ON MISSING WITNESSES

1. START WITH COMMON SENSE: THIS IS NOT AN EXERCISE IN APPLYING A RIGID CHECKLIST

In Efobi, at paragraph 41, Lord Leggatt warned against making the question of absent witnesses overly legal and technical. The court must consider the circumstances of the particular case.

The Wisniewski principles remain useful guidance. However, they should not become a substitute for explaining why the absence of a particular witness supports a particular inference. Reciting the authorities is only the beginning of the argument.

Relevant post:
Missing witnesses: the Supreme Court says it is really a matter of common sense — 26 September 2021. Discusses the Supreme Court’s approach in Efobi.

2. AN ADVERSE INFERENCE IS PERMITTED: IT IS NOT COMPULSORY

There is an important difference between saying that a court may draw an adverse inference and saying that it must do so.

In Manzi v King’s College Hospital NHS Foundation Trust [2018] EWCA Civ 1882, the Court of Appeal considered the trial judge’s approach to an absent witness. The decision illustrates the evaluative nature of the exercise. Identifying someone who has not been called does not, by itself, establish an error in the judge’s findings.

Relevant post:
Drawing adverse inferences when witnesses are absent: Court of Appeal decision: court has a discretion as to the inferences to be drawn — 29 August 2018.

3. IDENTIFY WHAT THE WITNESS COULD ACTUALLY HAVE ADDED

An argument about a missing witness should identify the issue on which that witness could reasonably have been expected to give material evidence.

Was the witness present? Did they make the decision in question? Do they have first-hand knowledge? Would their evidence add anything to the documents and witnesses already before the court?

These questions matter more than the length of the list of people who have not been called. In Efobi, the Supreme Court expressly identified the evidence the witness could reasonably have given, and the significance of the relevant issues, as matters to consider.

Relevant post:
Civil evidence: absent doctor does not lead to an adverse inference — 13 May 2016. Discusses the first-instance decision in Manzi and whether an absent doctor justified an adverse inference.

4. AN ABSENT WITNESS DOES NOT REMOVE THE NEED FOR A CASE TO ANSWER

The Wisniewski guidance recognises that an adverse inference may strengthen one party’s evidence or weaken the other’s. It also identifies the need for some evidence on the relevant issue before the proposed inference can be drawn.

The practical lesson is straightforward: identify the evidence supporting the allegation before relying on the opponent’s silence. A missing witness is not a means of supplying every element of a case for which there is otherwise no evidential foundation.

Relevant post:
Proving Things 43: how the court decides: a primer — 7 December 2016. Discusses Adepoju v Akinola [2016] EWHC 3160 (Ch), the burden of proof and the potential effect of failing to call relevant evidence.

5. EXPLAIN THE ABSENCE: DO NOT LEAVE THE COURT TO GUESS

The reason why a witness has not been called can be decisive. A satisfactory explanation may prevent an adverse inference; a credible but incomplete explanation may reduce its force.

A useful illustration is Mantey v Ministry of Defence [2023] EWHC 761 (KB). At paragraphs 82–85, the judge considered the absence of the claimant’s neighbour. The solicitor explained in a witness statement that she had misunderstood an order as restricting the witnesses who could be called. The judge accepted that explanation and declined to infer that the neighbour would have failed to support the claimant.

That did not supply the missing evidence. It explained why the court should not speculate adversely about what the neighbour would have said.

Relevant post:
Adverse inferences not drawn when witnesses are absent: another example — 21 December 2016. Discusses the Wisniewski guidance, including the importance of an explanation for absence.

6. CONSIDER THE OTHER EVIDENCE BEFORE ASKING THE COURT TO DRAW AN INFERENCE

A witness’s absence must be assessed against the evidence that is available. Contemporaneous documents, admissions and other first-hand accounts may already address the relevant issue.

Conversely, where the absent person is the only participant capable of explaining a significant transaction, their silence may carry considerable weight.

In The Lord Chancellor v Blavo & Co Solicitors Ltd [2018] EWHC 3556 (QB), the court drew adverse inferences where key participants did not give evidence. The importance of the missing witnesses arose from their connection with the matters requiring explanation.

Relevant post:
Adverse inferences drawn when solicitor did not give evidence: if you’ve had £22 million you need to explain it — 2 January 2019. Expressly discusses the application of Wisniewski.

7. THERE IS NO GENERAL REQUIREMENT TO CALL EVERY POTENTIAL WITNESS

Litigators must select the evidence necessary to address the issues. The existence of another employee, participant or observer does not automatically require that person to be called.

In Astex Therapeutics Ltd v AstraZeneca AB [2017] EWHC 1442 (Ch), the court robustly rejected an argument based on absent witnesses. The decision is a useful reminder to examine whether there is a proper evidential reason for expecting the witness to attend.

Relevant post:
Absent witnesses do not lead to adverse inferences: argument would lead to new “costs and terror” in litigation — 21 June 2017.

8. DO NOT ASSUME YOUR OPPONENT WILL IDENTIFY THE GAPS IN YOUR EVIDENCE

The preparation of a case should include a review of which allegations require first-hand evidence and who can provide it.

It is dangerous to assume that an opponent will flag every omission before relying upon it. Equally, the proposed inference must remain connected to the issues properly before the court.

Relevant posts:
It’s not your opponent’s job to point out omissions in your own evidence: a closer look at one aspect of PJSC Tatneft — 30 November 2020.

Witness Evidence Wednesday: court would not draw adverse inferences from witnesses who were not called to give evidence — 4 February 2026. The court rejected an attempt to use absent witnesses to support a fishing exercise for an unpleaded case.

9. A SERVED WITNESS STATEMENT DOES NOT RESOLVE THE CONSEQUENCES OF NON-ATTENDANCE

If a witness who has provided a statement will not attend trial, address the position expressly. Consider the proposed use of the statement, the applicable evidential requirements and the explanation for the witness’s absence.

Particular difficulties can arise where parts of a statement have already been put to another witness in cross-examination. The court may then have to determine the status and permissible use of that material.

Relevant posts:
“Missing witnesses”—the inferences to be drawn: the use of your opponent’s witness statements—it’s all or nothing — 5 March 2018. Discusses Property Alliance Group Ltd v Royal Bank of Scotland plc [2018] EWCA Civ 355.

Another case where a witness statement was served but the witness did not attend trial: the defendant had used parts of the statement in cross-examination—what was its status? — 26 August 2025.

10. LOOK FOR MISSING DOCUMENTS AS WELL AS MISSING WITNESSES

An evidential gap may concern documents that should have existed, rather than someone who should have attended.

The practical questions include what records were created, what preservation steps were taken, why material is unavailable and who was responsible for its loss. Distinguish an absence of records from evidence of deliberate destruction: the circumstances may support very different conclusions.

Relevant posts:
“Missing” WhatsApp posts and a phone lost at sea: what inferences would the court draw? — 3 August 2022. Considers the missing electronic evidence in Vardy v Rooney.

Proving Things 299: disclosure failures, missing documents and the reliability of witness evidence: the consequences at trial — 12 October 2026. Examines the consequences of failing to preserve, or destroying, documentary evidence.

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