Failure to call witnesses to give evidenceRichard M Paige
Failure to call witnesses to give evidence
The Gordan Ramsay case excited many journalists due to his celebrity; I hazard a guess that the Judge’s remarks about the effects of failure to call evidence from obvious key witnesses will not be taking up many column inches in the newspapers. For those who practice in civil RTA fraud cases, in which Claimants routinely shield alleged parties/witnesses from cross-examination by not calling even the alleged driver of their vehicle, the judge’s comments will be of interest and bear further reflection.
In summary, the incident case was about whether Mr Ramsay was liable in relation to a lease of premises as a guarantor of that lease, his case being that, despite his signature being on the document, he had not signed it, had had no knowledge of it and that his signature had been printed using a signature writing machine by his father-in-law, who did not have his consent to use it in such a manner. Whilst his father-in-law (and his brother-in-law) appeared to be key witnesses, neither were called at trial by either party (Mr Ramsey or the landlord).
There were clear reasons why such were not called by Mr Ramsay (the breakdown in relations between him and his father-in-law have been well-documented in newspapers and have also led to both police involvement and court proceedings) however it was submitted on behalf of Mr Ramsay that the failure of the landlord to call them should lead to the Court drawing adverse inferences against the said landlord. His Counsel relied on the statement of principle by Brooke LJ in Wisniewski v Central Manchester Health Authority  PIQR P323 at P340 where he said:
“In R v IRC ex parte T. C. Coombs & Co  2 AC 283 Lord Lowry explained at p. 300 the benefit which a court may be willing to confer on a silent defendant who gives some sort of explanation for his failure to give evidence, even if it is not a very good one. He said:
“In our legal system generally, the silence of one party in face of the other party’s evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party’s failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party may be either reduced or nullified.”
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.”
In the Ramsey case, Mr Justice Morgan endorsed such principle and noted that it had been invoked Supreme Court in Prest v Prest  2 AC 415. He noted that in the R v IRC ex parte T. C. Coombs & Co case, the Court was concerned with “a party” not giving evidence whereas in the Wisniewski case, the Court was concerned with a witness not being called by a party.
Mr Justice Morgan held as follows
“I find that Mr Ramsay has raised a case which requires to be answered as to Mr Hutcheson having no authority to commit Mr Ramsay to the guarantee. This is not a case of a party with obviously relevant evidence to give declining to give evidence. This is a case where neither party has called either of the Hutchesons. There was no suggestion that I should draw any adverse inference against Mr Ramsay for failing to do so. Mr Ramsay has very good reasons for not calling either of the Hutchesons.
It would have been open to Mr Love [the Landlord] to take steps, or to try to take steps, to call one or both of the Hutchesons. Not long after Mr Ramsay first raised with Mr Love his contention as to Mr Hutcheson’s want of authority, Mr Love contacted the Hutchesons and, initially at any rate, they co-operated with Mr Love and provided him with information which Mr Love used to seek disclosure of documents from Mr Ramsay. Further, the Hutchesons appeared to be willing to say that Mr Ramsay did know of, and did approve, the giving of the guarantee. However, the Hutchesons’ attitude to Mr Love later changed. Mr Love applied for a non-party disclosure order against them and although documents were obtained, Mr Love found, to his great surprise, that his application was opposed by the Hutchesons and they applied for an order that he pay their substantial legal costs.
On the material before me, I consider that it is unlikely that the Hutchesons would have been prepared to give evidence voluntarily at this trial. One reason for thinking that is that Mr Ramsay reported Mr Hutcheson to the police for alleged criminal behaviour and Mr Ramsay has been interviewed by the police on more than one occasion in relation to that report. Mr Ramsay understands that the resulting police investigation is continuing. It would not be surprising if the Hutchesons did not wish to have their conduct investigated at a civil trial in advance of a decision being made as to a possible criminal prosecution. Further, [Counsel for Mr Ramsey] submitted that the Hutchesons were “admitted perjurers” and any evidence they might give would be unreliable. Not having heard the Hutchesons, I am not in a position to make any findings as to their reliability. I can speculate however in this way. It is entirely possible that if the Hutchesons came to give evidence that I would have been cautious before I accepted their evidence, in view of the allegation of previous perjury and in view of the fact that they are not disinterested witnesses. If I were to feel cautious about their evidence, that would not mean that I would automatically accept all and any evidence from Mr Ramsay to the contrary. In such a case, it would still be necessary for me to consider his evidence and assess it in the light of any contemporaneous documents and the inherent probabilities of the case.
My overall conclusion on the submission, that I should draw an adverse inference against Mr Love by reason of the fact that he has not called either of the Hutchesons as a witness, is that any potentially detrimental effect on Mr Love’s case by reason of the Hutchesons not being called as witnesses is significantly reduced but possibly not wholly eliminated.
I have one further comment to make on the absence of the Hutchesons as witnesses. When Mr Ramsay came to give his evidence, he knew that the Hutchesons were not being called to give evidence. Mr Ramsay was asked many questions in cross- examination about his dealings with the Hutchesons in circumstances where the facts would really only be known to Mr Ramsay and to them. For some witnesses there might have been a tendency to give self-serving evidence in the expectation that no one would be called to contradict it. I bear that possibility in mind although in the event I have not given any real weight to it. In the event, I have been able to accept a great deal of Mr Ramsay’s evidence. There are parts of his evidence which I am not able to accept but I have reached my decision in that respect without giving any real weight to the fact Mr Ramsay knew when he gave his evidence that the Hutchesons were not being called as witnesses.”
Even in the circumstances therefore that the witnesses would not have given evidence voluntarily and in any event that such evidence would not have been given much weight, the Judge was prepared to draw some (possibly slight) adverse inference. The case provides a clear and up-to-date assessment of the authorities and supports the principle that adverse inferences can be drawn by failure to call witnesses who could obviously give material evidence.