Drawing specific adverse inferences from the failure of a party to call particular witnesses

In Ahuja Investments Ltd v Victorygame Ltd [2021] EWHC 2382 (Ch)('Ahuja'), HHJ Hodge QC (sitting as a Judge of the High Court) on 26.8.21 handed down judgment, wherein he considered when the court might draw specific adverse inferences from the failure of a party to call particular witnesses. At paragraphs 23 and 24, the Judge said:

'It is well-known that, in certain circumstances, the court may be justified in drawing adverse inferences from the absence of a witness who might have been called, and who might be expected to have material evidence to give; but the burden is on the party who invites the court to draw an adverse inference from the failure to call such a witness clearly to identify the nature of the evidence which the court is invited to infer, and to explain why the absence of evidence on the point from that witness is material to that issue. [Counsel for the defendants] referred me to the case of Magdeev v Tsvetkov [2020] EWHC 887 (Comm) where, founding themselves upon observations of Brooke LJ (with the agreement of Roch and Aldous LJJ) in what Cockerill J describes as "the increasingly relied upon authority" of Wisniewski v Central Manchester Health Authority [1998] PIQR 324, each party had suggested that the court should draw adverse inferences against the other because certain witnesses had not been called. Having reviewed the authorities, Brooke LJ derived the following principles from them in the context of the case that was before his court:

(1) In certain circumstances, a court may be entitled to draw adverse inferences from the absence, or the silence, of a witness who might be expected to have material evidence to give on an issue in that 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 or her absence or silence may be reduced or nullified.

At [150] of Magdeev, Cockerill J observed that "the tendency to rely on this principle in increasing numbers of cases is to be deprecated. It is one which is likely to genuinely arise in relatively small numbers of cases; and even within those cases the number of times when it will be appropriate to exercise the discretion is likely to be still smaller." Cockerill J proceeded to deal with the point relatively briefly at [154] thus:

(1) This evidential 'rule' is a fairly narrow one. The drawing of such inferences is not something to be lightly undertaken.

(2) Where a party relies on it, it is necessary for it to set out clearly (a) the point on which the inference is sought, (b) the reason why it is said that the 'missing' witness would have material evidence to give on that issue, and (c) why it is said that the party seeking to have the inference drawn has itself adduced relevant evidence on that issue.

(3) The court then has a discretion, and will exercise it not just in the light of those principles, but also in the light of:

(i) the overriding objective, and (ii) an understanding that it arises against the background of an evidential world which shifts - both as to burden and as to the development of the case - during the trial.'

Then, at paragraph 25, the Judge in Ahuja said:

'In my judgment, before the discretion to draw an adverse inference or inferences can arise at all, the party inviting the court to exercise that discretion must first:

(1) establish (a) that the counter-party might have called a particular person as a witness and (b) that that person had material evidence to give on that issue;

(2) identify the particular inference which the court is invited to draw; and

(3) explain why such inference is justified on the basis of other evidence that is before the court.

Where those pre-conditions are satisfied, a party who has failed to call a witness whom it might reasonably have called, and who clearly has material evidence to give, may have no good reason to complain if the court decides to exercise its discretion to draw appropriate adverse inferences from such failure.'

Five things:

(1) the Judge in Ahuja, at paragraph 31, noted the then very recent authority of Efobi v Royal Mail Group Ltd [2021] UKSC 33, [2021] 1 WLR 3863 ('Efobi'), decided on 23.7.21 (a case concerning the burden of proof in an employment case where discrimination is alleged). In particular, that Lord Leggatt (with whom Lord Hodge, Lord Briggs, Lady Arden and Lord Hamblen agreed) had said, at paragraph 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 [1998] PIQR P324 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."

(2) paragraph 23 of Ahuja was referred to by Rajah J in Brittain v Raja [2023] EWHC 2273 (Ch);

(3) there was an appealed in Ahuja but: (a) that was from a different judgment, and so not in respect to the law of adverse inferences; and (b) the appeal was unsuccessful anyway (see Victorygame Ltd v Ahuja Investments Ltd [2021] EWCA Civ 993)

(4) in Ocean Clap Shipping Ltd v Global Offshore Services BV [2025] EWHC 1591 (Comm) ('Ocean Clap'), Butcher J said, at paragraph 99:

'The Defendants argued that adverse inferences should be drawn from Owners' failure to call appropriate individuals to give evidence to the court, relying on Ahuja Investments Ltd v Victorygame Ltd [2021] EWHC 2382 (Ch) and Efobi v Royal Mail Group Ltd [2021] UKSC 33. In Efobi Lord Leggatt JSC, giving the judgment of the court, said as follows at [33]:

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.'

(on the facts in Ocean Clap, '...there are insufficient reasons to draw any adverse inferences from Owners' failure to produce more witnesses in this case' paragraph 100)

(5) in Melia v Tamlyn and Son Ltd [2024] EWHC 3002 (Ch) ('Melia'), HHJ Berkley sitting as a Judge of the High Court, referred to Ahuja on the law of adverse inference, and said 'I respectfully agree.' (paragraph 107). The Judge in Melia then said, at paragraph 107:

'The authorities there cited, and the conclusions he himself reached are pithily summed up in Phipson on Evidence 20th Ed. ¶45-35 thus:

"It is in a comparatively small number of cases that it would be appropriate to draw an adverse inference, but where it is sought to do so, the party inviting the court to exercise such a discretion must:

(1) Set out clearly (a) the point on which the inference is sought and identifying the inference sought; (b) the reason why it is said that the missing witness would have material evidence to give on that issue; (c) why it is said that the party seeking to have the inference drawn has himself adduced relevant evidence on that issue; and (d) why the party seeking the inference could not himself be expected to call or witness summons the witness.

(2) Explain why such inference is justified on the basis of other evidence that is before the court.

It is then open to the other party to resist such an inference by giving a good reason why the witness is absent or silent. If he is able to do so, then no inference should be drawn. If there is some credible explanation given, even if not wholly satisfactory, the potentially detrimental effect of his absence or silence may be reduced or nullified.'

The Judge in Melia then, at paragraph 108, quoted Lord Leggart in Efobi at paragraph 41 (quoted above).

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