Staying silent, or failing to give evidence which may be relevant to a claim, can result in a judge drawing ‘adverse inferences’ against a party. Simply put, this means a court may decide that the absent or destroyed evidence would have been damaging to a party’s case, which could have significant consequences for the outcome of a trial.
Various Claimants v MGN Limited
The principle of adverse inference was demonstrated during the recent trial of Various Claimants v MGN Limited. In his closing comments following witness evidence being heard, the judge, Mr Justice Fancourt, questioned why more than 30 journalists who worked at MGN during the relevant period had not given evidence during the trial.
Mr Justice Fancourt stated he “may be invited to draw” inferences as to why a number of individuals, including former editors, Piers Morgan and Neil Wallis, had not given evidence during the trial, particularly given both Morgan and Wallis had publicly commented as to unlawful information gathering in television programmes broadcast during that trial.
The origins of ‘adverse inference’
This principle of ‘adverse inference’ first became relevant in the case of Armorie v Delamirie (1721) 93 ER 664, where the Claimant (a chimney sweep) found a diamond ring in a chimney which he took to the Defendant (a jeweller) for valuation. The jeweller failed to return the diamond that was set into the ring and the Claimant sued him for damages. The court adopted the presumption that, in the absence of any evidence provided by the Defendant, the court could infer that the missing stone was of the highest value that would fit inside the empty socket on the ring. The aim of this presumption is to prevent a person responsible for wrongdoing escaping liability.
This was subsequently expressed in the more recent case of Indian Oil Corporation Ltd v Greenstone Shipping SA  QB 345. Here it was stated that: “if the wrongdoer prevents the innocent party proving how much of his property has been taken, then the wrongdoer is liable to the greatest extent that is possible in the circumstances“.
Of particular relevance to the current trial is the discussion of adverse inferences in the judgment of Shobna Gulati & Others v MGN Limited  EWHC 1482 (Ch). The Claimants in this case stated that the Defendant had deliberately destroyed and concealed evidence and therefore adverse inferences should be drawn. In his judgment, Mr Justice Mann found that this principle was particularly applicable in relation to evidence of phone hacking due to the lengths the Defendant went to conceal its wrongdoing.
Vardy v Rooney
One of the most recent applications of this principle appeared in the case of Vardy v Rooney  EWHC 2017 (QB) in relation to missing documentary evidence and witnesses. During these libel proceedings, Mrs Vardy’s agent, Caroline Watt, did not give evidence, while a phone containing relevant evidence was supposedly lost in the North Sea and WhatsApp messages were deleted.
In paragraph 48 of the judgment, Mrs Justice Steyn drew an inference that the reason Ms Vardy did not call Ms Watt to provide evidence was because, “she knew that when tested in cross-examination her evidence would be shown to be untrue, and that it would have been highly likely to have undermined the claimant’s case”. She also went on to state that it was likely there had been a deliberate destruction of evidence on the part of the Claimant in regard to the deleted messages and the phone which the judge regarded as unlikely to have been an “accidental” loss.
The comments made by Justice Fancourt, under the substantial body of case law, highlight the potential risks of not seeking evidence from relevant witnesses. The Vardy v Rooney case highlights the significance of ensuring that relevant documentary evidence including data from social media sites and WhatsApp is retained.
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