Revisiting useful old judgments: deleted messages and adverse inferences

Barrister Gordon Exall, author of the ever-useful Civil Litigation Brief, occasionally tweets links to his older articles, giving us the opportunity to remember the things which remain important.

He recently put up a link to his post from January 2022 When WeChat messages are lost or destroyed – by two-year-old: the adverse inferences a court can draw. That brought me back to an article I wrote at the time headed Adverse inferences fill in the gaps when the evidence is incomplete.

I said this:

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.

The linked points – missing evidence and whether the story told about it by a witness is credible – came up again in the judgment which concluded the so-called WAG litigation, where the judge frankly disbelieved the story about missing WhatsApp data and about the phone dropped into the North Sea. I wrote about that here.

There have been several stories in the last couple of years about ministers and others in positions of responsibility whose data conveniently went missing. These include the papers about Boris Johnson’s work trips with Jennifer Arcuri and various stories about the government’s accident-prone handling of data about the so-called VIP contracts. The subject came up again a couple of weeks ago when it emerged that under-fire justice minister Dominic Raab used WhatsApp for official business but that the government has no copy of his messages.

Ministers will probably be able to bulldoze their way through investigations into these missing messages and the subject is, in any event, likely to be lost in the wider allegations about their conduct. It will be the voters, rather than the courts, who cast judgement on their credibility.

If you are a witness in the civil proceedings, however, you need to do rather better than “my phone fell in the sea” or “my two-year-old deleted the app”. If that does not matter to you as a witness, it probably ought to matter to the solicitors responsible for giving disclosure. If you are unsure about your own client’s credibility, you might try the test I suggested in relation to the phone-in-the-sea story:

We don’t know what advice was given by Vardy’s lawyers, but my own test might have been to tell the phone and WhatsApp stories to ten different people, complete with a chronology showing the court order, the attempted WhatsApp transfer, and the boat trip, and ask them what they thought. What would the majority of them think?

There is nothing new here, but it is helpful that Gordon Exall has brought the subject back as a reminder.


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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