The missing witness – when do courts draw adverse inference

Following the decision last year in Michael Mantey v Ministry of Defence [2023] EWHC 761 (KB), we consider what inferences a court might draw from the non-attendance of key witnesses, particularly when assessing the issue of fundamental dishonesty.

Background 

The claimant in this case was formerly a serving soldier. In October 2020 he brought a claim against the defendant for damages for an alleged Non-Freezing Cold Injury, as a result of the defendant’s negligence and/or breach of statutory duty. The claimant alleged that he was suffering continuing disabling symptoms. The claim was discontinued after the defendant’s disclosure of video-recorded surveillance evidence.

This footage showed discrepancies between the claimant’s actions before and after a medical examination and his presentation at the time of the examination on the same day. The defendant argued that these discrepancies were only properly explicable in demonstrating the claimant’s dishonesty. This was denied, with the claimant relying on the ‘good day, bad day’ argument, commonly seen in claims of this nature.

Mr Justice Eyre found the claim advanced by the claimant to be fundamentally dishonest within the meaning of CPR Rule 44.16.

Absence of a key witness

The judge was also asked to consider drawing an adverse inference from the absence of a key witness who could potentially corroborate or undermine Mr Mantey’s case. 

Mantey and his wife had served supplemental witness statements in response to surveillance evidence disclosed by the defendant. The claimant placed considerable weight on the role of his neighbour, Mr Patel, in his rehabilitation, crediting Mr Patel for his ‘good days’ as he provided support and encouragement.

Despite Mr Patel seemingly playing a significant role in his rehabilitation and partial recovery, Mr Mantey did not rely on a statement from his neighbour. The defendant’s counsel therefore invited Eyer J to draw an inference adverse to the claimant from Mr Patel’s absence.

When asked by the court to explain the absence of evidence from Mr Patel, the claimant’s solicitor stated she had misread Master McCloud’s order as limiting the witnesses to the claimant and his wife.

In considering the defendant’s request, Eyer J examined the claimant solicitor’s statement alongside his own assessment of the case of Efobi v Royal Mail Group Ltd [2021] UKSC 33. In Efobi Lord Leggatt explained, at para [41], that this decision was a matter of “common sense and rationality” rather than of the application of legal criteria and “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.”

Eyre J was satisfied that the claimant solicitor’s statement, which had been verified by a statement of truth, explained why Mr Patel was not present and as this was due to solicitor error he declined to draw any adverse inference in this case. He noted that this was a case where Mr Patel may well have supported the claimant’s case had he been called to court. 

Practical implications

The court has the discretion to make adverse inferences from the absence or silence of a witness who could be expected to give material evidence on an issue, as per Wisniewski v Central Manchester Health Authority [1998] Civ 596. However, it appears the bar is high for parties to establish that inferences should be drawn, even where the issue of fundamental dishonesty arises.

In the context of the Mantey case, Mr Patel seemingly held material evidence relevant to the issue of Mr Mantey’s injuries, rehabilitation and recovery. Such evidence could have assisted the parties, and more importantly the court, to consider the claimant’s ‘good day, bad day’ argument and ultimately the issue of fundamental dishonesty.

It is easy to see why the judge felt the court should only be expected to consider the evidence before it in this particular case. The justification for the absence of Mr Patel was solicitor error and therefore to draw adverse inferences in these circumstances could have resulted in prejudice.

Whilst Eyer J declined to draw adverse inferences in Mantey, it is important to emphasise the elements of discretion and common sense of the court in each individual case (as noted in Efobi).

In circumstances where it is suspected evidence from a specific witness has been omitted as they are unable to support a dishonest case, it may be prudent to ask the court to draw adverse inference as, in the absence of reasonable justification, the court may be minded to use their discretion.

For more information, please contact; Olivia Oddi, FD SIG member.