Drawing adverse inferences where there is a failure to serve evidence
Mr Simon Colton QC considered the inferences to be drawn when the defendants had not filed witness evidence and there was issues in relation to disclosure.
In the recent High Court decision of Sinha v Taylor & Ors  EWHC 1096 (Comm), Mr Simon Colton QC considered when it is appropriate for the court to draw adverse inferences in circumstances where a party has failed to adduce witness evidence and/or disclose documentary evidence.
What is clear from the judgment, which can be found here , is that adverse inferences are not automatically drawn by the court in the aforementioned situations. In deciding whether an adverse inference should be drawn, the court must consider the reason why the absence of witness evidence and/or documents has occurred.
The ‘common sense’ approach to drawing adverse inferences, as set out by Lord Leggatt in the Supreme Court case of Royal Mail Group Ltd v Efobi  UKSC 33 , was applied by Colton QC, enabling the court to draw an adverse inference in the circumstances where no witness evidence had been provided and relief from sanctions in respect of the same was not sought.
Whether adverse inferences can be drawn where there is a failure to serve documentary evidence was not considered in the same way, yet the test still calls for the use of ‘common sense’. The approach applied by Colton QC was derived from the observations of Arden LJ in the case of Wetton v Ahmed and ors  EWCA Civ 610 at para 14, which can be found here. Colton QC concluded however, that it was no appropriate to draw adverse inferences from the Defendant’s failure to serve documentary evidence in the case at hand, as the Defendant had asserted that the documents sought were no longer under their control as they had been passed across to the liquidator along with the company in question. This had been the Defendant’s assertion from the earliest stages of the case and was maintained at Trial.
In regards to personal documents of the Defendant, no adverse inference was drawn from the failure to disclose material such as text messages, as they may not have been disclosable on any of the identified issue for disclosure.
As such the court held that while the absence of documentation may be regarded as suspicious, it is not clear-cut that the defendants acted improperly in the disclosure they gave, and no inference was drawn in this regard.