“56. Mr Maskrey QC invites the court’s attention to the guidance of the Court of Appeal in Keefe v The Isle of Man Steam Packet Company Limited  EWCA Civ 683 (per Longmore L.J. at paragraph 19) that:
“In such circumstances the court should judge a claimant’s evidence benevolently and the defendant’s evidence critically. If a defendant fails to call witnesses at his disposal who could have evidence relevant to an issue in the case, that defendant runs the risk of relevant adverse findings, see British Railways Board v Herrington  AC 877, 930G.”
57. Mr Maskrey QC also refers to the case of Wisniewski v Central Manchester  PIQR P324 (per Brooke L.J., at 340):
“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.””
There are several posts on the blog which deal with the approach the trial judge takes when certain witnesses are not present. In some cases it leads the judge to draw adverse inferences, in others it does not. In Welds -v- Yorkshire Ambulance Service NHS Trust & Sheffield Teaching Hospitals NHS Foundation Trust  3325 (QB) His Honour Judge Freedman did not draw adverse inferences when there was a reasonable and credible explanation for the witnesses not attending.
- The defendant did not call certain witnesses who had stated they were ill or could not remember anything.
- The judge declined to draw adverse inferences when there was a credible explanation for their failure to attend.
The claimant was bringing an action against the defendants for clinical negligence in relation to his birth. The midwives were not called as witnesses and the claimant invited the court to draw…
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