Durrant Round 2: What to do when the court has refused to let you rely upon your evidence

PI_Nicola_Philipson By Nicola Phillipson

Durrant v CC Avon & Somerset Constabulary

[2014] EWCA 2922 (QB)

29th August 2014

 (i) Where there was a valid explanation for the Defendant failing to adduce any evidence, no adverse inference could be drawn. 

(ii) The court should make findings based upon the evidence available, not the evidence which might have been available.

As you will remember (and it not, you can find a summary in the case law section of the Jackson Corner on Chambers’ website), at the end of 2013 the CA refused to allow the Defendant to rely upon witness statements which had been served out of time.  Therefore when the Claimant’s claim for damages for false imprisonment, assault, malicious prosecution, Breach of Article 3 and defamation came before the court in August 2014, the only statements read by the court were those provided by the Claimant, and the only live evidence came from the Claimant and one witness on her behalf.  The court did, however, also view CCTV.

The judgment itself is worth reading to show how even in the absence of any evidence from the Defendant, a case can be undermined by inconsistencies within the available evidence and cross-examination of the Claimant herself.  However, for the purposes of the JC, we are interested in the inferences, if any, which can be drawn from the failure of the Defendant to provide any evidence or witnesses.  Unsurprisingly, it was held that although there are circumstances where an adverse inference may be drawn, there must be some evidence to support such an inference.  Where, as here, there is a valid explanation for the absence, no adverse inference can be drawn.

The Defendant tried to argue that as they had not been at liberty to call evidence, the court should not, or should hesitate to make, findings in favour of the Claimant where there is the possibility of an alternative explanation.  This submission was rejected; it is the duty of the court to make findings based upon the evidence before the court, not the evidence which might have been before the court.

This concludes the summary, but as there are only 4 relevant paragraphs within the judgment, I have set them out for you below.

HHJ Seys Llewellyn QC (Sitting as a Deputy High Court Judge)

140 In some cases adverse inference may be drawn from the absence or silence of a witness.
The Claimant drew my attention to Wisniewski –v- Central Manchester Health Authority [1998]
PIQR P324 CA, Brooke LJ:

“From this line of authority I derive the following principles in the context of the present
case. (1) In certain circumstances a court may be entitled to draw adverse inferences
from the absence or silence of a witness who might be expected to have material
evidence to give on an issue in an 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/her absence or silence may be reduced or nullified.”

141 The present case is unique in my experience, in that it is known to the court that there are witness statements, and that the Defendant would wish those statements to be in evidence and oral evidence given by their authors. There is no suggestion that the police officers who gave those witness statements were unwilling to attend to give evidence.

142 In my judgment it is therefore not appropriate to draw adverse inference against the individual police officers, or the Defendant, from the simple absence of statements or live evidence from those officers.

143 Mr Payne goes further and argues that the allegations made by the Claimant are serious and sensitive and given that the Defendant is not at liberty to call evidence the court should not make, or should hesitate to make, findings in favour of the Claimant where there is the possibility of alternative explanation. He contends that if the court makes findings adverse to the police, or to individual police officers, there will or may be serious consequence to them. In my judgment I am required to arrive at findings upon the evidence which I have, not the evidence which I might have had but do not have because of procedural default on the part of the Defendant. If the court makes findings adverse to the police, doubtless any individual police officer will be able to protest that he or she has been deprived of the opportunity to contest the allegation insofar as it reflects personally on himself or herself. The Court of Appeal made the ruling that the Defendant was not to be at liberty to call evidence and must have been fully aware of the inevitable consequence of that.

The full judgment can be read here

Nicola Phillipson






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