Adverse inferences filling the gaps when the evidence is incomplete

We recently saw a case where a phone bearing WhatsApp messages went yachting and ended up in the North Sea (my article is here). Next up is WeChat messages allegedly deleted by a two-year-old.

I don’t really need to write in any detail about ED & F Man Capital Markets Ltd v Come Harvest Holdings Ltd & Ors [2022] EWHC 229 (Comm), and what it says about adverse inferences, because Gordon Exall has (as so often) already filleted the judgment for the points which matter – see When WeChat messages are lost or destroyed – by a two-year-old: the adverse inferences a court can draw.

For discovery / disclosure purposes, two overlapping points arise:

  • Discussions (in this case on WeChat) in advance of more formal exchanges by email are no less potentially discoverable than the subsequent emails.
  • Adverse inferences may be based on the assessment of witnesses and the evidence, and those adverse inferences may have a very deleterious effect on a party’s position and the outcome.

It is worth re-stating (or re-re-stating in this case) what Leggatt J said at paragraph 22 of Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)

“… the best approach for a judge to adopt … is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

The point which arose in this case came up in the Disclosure Review Document, and was repeated in a solicitors’ email and by the relevant witness:

“[Straits’] employees are allowed to use personal mobile phones, tablets and other handheld devices to access the company emails. However, the documents accessed or held in this way will be the same as stored on the email and/or archiving servers discussed above. [Straits’] employees do not use messaging systems for the purposes of any commercial discussions which could relate to issues 6, 9, 11, 15, 16 and/or 17.”

The problem was that the court did not believe the witness when she said:

We could link [to WeChat] to have casual conversations with customers but anything that is formal would then go on to an email to be confirmed there.

Subsequent disclosure and oral evidence from that witness, Miss He, showed that to be false.

The rest, including the assertion that Miss He’s two-year-old son had accidentally deleted her WeChat app, are details which you can get from Gordon Exall’s post. If you want more on documentary evidence and the “recollections” of witnesses, start at paragraph 93 of the judgment where the judge considered a number of authorities on the point. One of the judgments referred to, that of HHJ Simon Brown QC in Earles v Barclays Bank [2009] EWHC 2500, itself set out a helpful summary of the law, and specifically on filling gaps where the documents and the evidence are incomplete, inadequate or, whatever reason, deemed suspicious.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure. Bookmark the permalink.

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