BANQUO’S GHOST NOT AT THE FEAST: WHEN A KEY WITNESS IS NOT CALLED – THE INFERENCES A COURT WILL DRAW

“KEY POINTS:
* A party who was wished to object to documents being used at trial should serve the appropriate notices under the Civil Procedure Rules.
* The failure of a party to call a key witness in its own defence could lead to adverse inferences being drawn against that party.
* Oral evidence remains important in commercial cases. The fact that documents exist does not mean that a witness should not be called; the absence of a witness could lead to little weight being given to the documents.
* The fact that a witness no longer works for a party is not, in itself, a good reason for not calling a witness.”

Civil Litigation Brief

There is an interesting discussion of the role of the “absent witness” in the judgment today of Mr Justice Kerr in O’Hare -v-Coutts & Co [2016] EWHC 2224 (QB). There are dangers in a party not calling someone who is clearly a key witness in a case. The presence of relevant documents is not a panacea.

“The “general rule” in CPR rule 32.2(1)(a) remains that “any fact which needs to be proved by the evidence of witnesses is to be proved … at trial, by their oral evidence given in public”. The approach commended by Leggatt J in Gestmin is very useful, not least in this case, but does not licence failure to prove the correctness of a disputed documentary record”

KEY POINTS

  • A party who was wished to object to documents being used at trial should serve the appropriate notices under the Civil Procedure Rules.
  • The failure of a…

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