Absence of material witnesses

In December 2017 the High Court had cause to consider a claim by an insurance company for damages based on the assertion that the Defendant had fraudulently represented to them that his car had been in collision with another vehicle driven by  someone who they insured. Mr Justice Teare handed down judgment in UK Insurance Ltd v Stuart John Gentry [2018] EWHC 37 (QB)  on 18 January 2018 and awarded the Claimant damages of £19,179 in addition to interest and costs.

One of the most interesting aspects of the judgment was a reminder of the court’s approach to “missing” witnesses, and at paragraph 68 the Judge noted:

“Mr. Grant on behalf of the Claimant invited the Court to draw adverse inferences from the failure of Mr. Gentry to give evidence (or to call evidence from Mr. Miller, Mr. Ebbs, and Mr. Toms). The circumstances in which inferences may be drawn have been summarised by the Court of Appeal in Wisnewski v Central Manchester Health Authority [1998] PIQR P324 at p.14 in these terms:
“(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 an 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 have been 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.””

To give one example of how this might operate in a housing context, consider a possession claim where the landlord seeks to show that the tenant did not live at the demised premises as their only or principal home at the expiry of a notice to quit.  They have credit reference evidence linking the tenant to an alternative address which proves to be their partner’s.  The tenant does not call this person to give evidence, or they do not attend trial.

The two-stage approach will then be:

(a) why has the partner not been called or not attended trial?

(b) if there is no good reason, should the court draw an adverse inference such as to diminish the defendant’s evidence or bolster that of the claimant?

Finally, as part of the evidential overview, the importance of the Court of Appeal decisions in Lambeth LBC v Vandra [2005] 1801 (see paragraph 8 concerning the absence of direct evidence) and Islington LBC v Boyle [2012] PTSR 1093 (see paragraphs 55 & 65 with respect to the need for the tenant to rebut an inference in two homes cases) should not be overlooked.

 

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