Civil Evidence: Missing Witnesses and Adverse Inferences

6 December 2021
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Key takeaways:
  • Recent decisions of the courts of England and Wales in the past year have shed light on the drawing of adverse inferences in relation to a failure to call witnesses, or from a witness’s failure to deal with a certain issue in their evidence.
  • In Ahuja Investments Ltd v Victorygame Ltd & Anor [2021] EWHC 2382 (Ch), the court clarified the principles which need to be engaged in order for a party to successfully have adverse inferences drawn against another party, in particular, the need to show that the absent witness has material evidence to give.
  • The process of identifying material witnesses (and evidence) may now be helped by the introduction of PD57AC, which emphasises the importance of parties using trial witness statements as a means of informing the Court (and the other side) of the evidence that a party will rely on at trial and of helping the court to further the overriding objective.