GETTING EVIDENCE TO TRIAL TO PROVE YOUR CASE: BE CAREFUL OF “MISSING” WITNESSES?

This has been, it has to be said, an interesting week for considering evidence in civil cases. Another interesting example can be found in the decision in Howmet Ltd -v- Economy Services Limited [2014] EWHC 3933 (TCC), a decision by Mr Justice Edwards-Stuart.

THE FACTS

The case was about the cause of a fire in the claimant’s premises. The claimant alleged that it was caused by the failure of a probe that was supposed to detect a loss of liquid in a hot water tank.  The cause of the fire and breach of duty were not admitted.

THE EVIDENCE

What is particularly interesting is the judge’s observations about the witnesses.

The evidence at the trial

  1. Although Howmet called a number of witnesses, many of its employees who were involved in the relevant events were not called, either because they could no longer be traced or because it was thought unnecessary and/or disproportionate to call them. EDL complained about Howmet’s failure to call several witnesses who EDL alleged could have given evidence that would have been very relevant to the events leading up to the fire in February 2007: in particular, Mr. Darke, Mr. Palfrey and Mr. Moxey all of whom still worked for Howmet (or for its parent, Alcoa), or were thought to do so. Another was a Mr. Hunt: although he no longer worked for Alcoa, at least one other witness (Mr. Gill) was able to contact him.
  2. For reasons that will become apparent in this judgment, I consider that there is some force in this. Since the burden of proof is on the party which has a case to prove, it must call the evidence that it requires in order to make good that case. Even if, strictly speaking, a particular witness is not essential for the proof of the case, in certain circumstances a failure to call that witness may give rise to an inference against a party who is in a position to call that witness and does not do so. In my view, such an inference may be drawn if there is material upon which the court can conclude that the witness may have relevant evidence to give and that his or her evidence may not support that party’s case.
  3. Another witness who was not called was Mr. Reed. He was an electrician who played a central role in relation to the thermolevels. However, he was not called because he could not be traced and so Howmet served a witness summary which consisted of the notes of an interview with Mr. Jonathan Boyle, the forensic expert instructed by Howmet’s insurers, which took place shortly after the fire. This was understandable.
  4. In the event, EDL had the advantage of extensive notes taken by Mr. Boyle, who interviewed a large number of witnesses many of whom did not give evidence at the trial. These notes were very full and had obviously been taken with care. Nevertheless, they had not been approved by those whose evidence they reflected. Parts of them are important and will be discussed in much greater detail later in this judgment.
  5. As I have already mentioned, EDL called no evidence at the trial although it had served some witness statements.
  6. With reference to these notes taken by Mr. Boyle, I should make an observation about one aspect of the cross-examination of Howmet’s witnesses by counsel for EDL. Many of them were cross-examined by reference to Mr. Boyle’s notes, which was entirely understandable. Some of these notes were of interviews that took place during the two days following the fire; others about two weeks later; and others about three months after the fire. Whilst there is no evidential difficulty about a witness being cross-examined about the notes of an interview that he had given several years earlier, there may be difficulties when a witness is being asked questions about the notes of an interview with someone else. This is particularly so if those notes have not been verified as accurate by the person interviewed.
  7. One difficulty that arose in this case is that, on occasions, the questions to a witness either amounted to asking him[2] if he was in a position to disagree with what someone else had said to Mr. Boyle, or amounted to asking for what was in truth thinly veiled evidence of opinion. In respect of the former, the evidence has limited value. The fact that witness is unable to challenge what somebody else has said on a previous occasion does not mean that he can confirm it: his position may be entirely neutral. As to the latter, a question that asks, say, in respect of something in a note made by Mr. Boyle of an interview with someone else, “… that appears to be a reference to corrosion on a plug?” (see, for example, Day 4/148), is really inviting the witness giving evidence to say what he thinks that other person meant. Again, such evidence is of limited value – even if it is admissible at all, arguably being evidence of opinion – and the court must be astute to distinguish between evidence of fact that is within the knowledge of the witness and evidence that is really little more than speculation.

THE DRAWING OF ADVERSE INFERENCES DUE TO THE ABSENCE OF WITNESSES

The judgment contains a detailed analysis of the technical arguments in relation to the fire. However, ultimately, it was witness evidence, and in particular the absence of certain witnesses, that played a large part in the outcome. There was an issue as to whether the settings on the equipment had been changed and when this may have been done. The judge observed:-

  1. The employees of Howmet who might have been in a position to give evidence about this are Mr. Moxey and Mr. Palfrey, in particular the former given what he told Mr. Boyle about the thermolevel not working: the court has not been provided with any explanation as to why they have not been called. I do not regard proportionality (or disproportionality) as an adequate answer. So far as Mr. Reed is concerned, Howmet served a witness summary of his evidence (comprising the notes of his interview with Mr. Boyle) because he left Howmet fairly soon after the fire and cannot be traced.
  2. Whilst I am reluctant to draw inferences adverse to Howmet on this basis alone, in these circumstances I do not consider that it would be appropriate or just to make assumptions favourable to Howmet that would be in conflict with Mr. Boyle’s notes of what he was told by Mr. Moxey.
  3. In Nulty v Milton Keynes Borough Council [2013] BLR 134, the Court of Appeal held that the civil “balance of probability” test meant no less and no more than that the court had to be satisfied on rational and objective grounds that the case for believing that the suggested means of causation occurred was stronger than the case not so believing (see paragraph 35 of the judgment of Toulson LJ). As the Court of Appeal explained in that case, it is not enough for the court to choose between, say, three causes – each of which taken by itself is an unlikely cause – and then, as a matter of logic, to conclude that the least unlikely must be the probable cause of the loss.
  4. But, as I have already said, there is no evidence that anyone adjusted the thermolevel in the hot water tank very shortly before the fire. I have already noted that, if the potentiometer was adjusted at all in the period leading up to the fire, it would probably have been done by Mr. Reed when he checked the thermolevel following the incident on 29 January. If the cause of the fire was that the potentiometer was incorrectly adjusted following the incident on 29 January 2007, then it could have remained in that condition for some days prior to the fire. This would be entirely consistent with what Mr. Moxey told Mr. Boyle.
  5. But, all in all, applying the approach in Nulty to the facts of this case, I am unable to conclude that incorrect setting of the potentiometer in the control unit was more likely than not the reason why the thermolevel did not cause the heater to cut out. If it did, I would hold that this was the result of, or at least materially contributed to by, the badly designed potentiometer control and the negligently drafted instructions on how to set it that were supplied by EDL. The potentiometer may well have been incorrectly set at the time of the fire, but on the balance of probability I cannot say that it was. Accordingly, Howmet’s claim in negligence against EDL must fail for want of proof of causation.

THE RESULT: THE CLAIMANT LOST

  • The claimant lost “for want of proof of causation”.
  • This illustrates the need to have a chain of evidence that covers liability, causation and damages.
  •  A judge can, in certain circumstances, make adverse inferences in the absence of witnesses.
  • Arguments of “proportionality” are unlikely to be accepted as a good reason for failing to call witnesses.

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