The case of Gordon Ramsay -v- Gary Love  EWHC 65 (Ch) has had much attention in the media, primarily because of the identity of the claimant. However the judge made important observations as to the inferences that can be drawn when certain key witnesses are not present at trial. The case highlights important elements of civil evidence in relation to the absence, or silence, of witnesses.
The claimant was seeking a declaration that he was not bound by the guarantee in a lease. It was accepted that the guarantee had not been signed by Mr Ramsay. The issue was whether he had authorised the signature. Two central witnesses, Christopher Hutchinson and Adam Hutchinson, were co-directors of the company with Mr Ramsay. The issue was whether they had authority to act on Mr Ramsay’s behalf. The Defendant did not call them as witnesses.
KEY POINTS: INFERENCES A COURT CAN DRAW FROM ABSENT WITNESSES
1. When a witness is absent or silent and material evidence is missing a court may, normally, draw adverse inferences from this silence.
2. The inferences drawn can strengthen the evidence of the opposing party or weaken the evidence of the party who fails to adduce the evidence.
3. There must be a “case to answer” before a court can draw inferences.
4. If there is a good explanation for the absence or silence of a witness, then no adverse inference can be drawn.
5. If there is a credible explanation, even one that is not wholly satisfactory, the potential detrimental effect of the absence of a witness may be reduced or nullified.
6. In the present case there was an explanation for the absence of key witnesses so that the detrimental inferences that could be drawn by their absence was substantially reduced, but not wholly eliminated.
THE LEGAL PRINCIPLES INVOLVED WHEN CERTAIN KEY WITNESSES ARE NOT CALLED AT TRIAL
The legal principles were reviewed and summarised by the judge when considering the evidence.
An overview of the evidence
- The principal dispute in this case, as to Mr Hutcheson’s authority to act on behalf of Mr Ramsay in relation to the giving of a guarantee by Mr Ramsay, is essentially a dispute of fact. I was given both oral and documentary evidence as to the factual matters in dispute. However, both the oral and the documentary evidence tendered at the trial are known to be incomplete. So far as the oral evidence goes, the central issue relates to the relationship between Mr Ramsay and Mr Hutcheson. While Mr Ramsay gave evidence, Mr Hutcheson did not. Other persons who might have given highly relevant evidence were not called. One such non-witness was Mr Hutcheson’s son, Adam, who was closely involved in the negotiations which led to the grant of the lease in this case.
- As regards the documentary evidence, I was told that when Mr Hutcheson was dismissed as Chief Executive Officer of GRH in October 2010, he removed large quantities of documents from that company’s offices and he deleted emails from the company’s computers. Accordingly, while it is possible that there might have been emails between Mr Ramsay and Mr Hutcheson which could have thrown light on the issues in this case, hardly any such emails have been disclosed. Indeed, it is not possible to know with any degree of confidence whether relevant emails once existed and have since been deleted and lost or whether there were never any such relevant emails. In this context, I should add the further fact that whilst it is clear that Mr Ramsay and Mr Hutcheson spoke on the telephone several times every day on average, there is no record of the contents of those calls. Yet further, although Mr Love applied for extensive disclosure of documents from Mr Ramsay, the latter successfully opposed the width of the disclosure sought but nonetheless, in the course of the trial, began to volunteer documents which had not been disclosed earlier, no doubt in the belief that the volunteered documents would assist his case.
- The result of the evidence taking the form it did is that the court has a difficult jigsaw puzzle to solve but it knows that it does not have all of the jigsaw pieces which once existed and it does not even have all of the jigsaw pieces which still exist and which could have been supplied.
- Naturally, the question was raised at the trial as to the court’s response to the fact that it was not being given all of the available and potentially relevant evidence. I consider that the starting point is that the court has to do the best it can with the evidence it has been given and it has to decide the case on that evidence. Plainly, the fact that potentially relevant evidence had been destroyed by Mr Hutcheson cannot be relied upon to draw inferences against Mr Ramsay or, indeed, against Mr Love. Further, it was not suggested that the fact that Mr Ramsay had successfully resisted an order against him for wider disclosure should be the basis of any adverse inference against him. The stance he took was almost certainly on legal advice, was upheld by the Master at the hearing of an opposed application for disclosure and there has been no appeal against the Master’s decision.
- However, Mr Seitler did submit that the absence of Mr Hutcheson and his son Adam from the trial was attributable to the decision of Mr Love not to call them and that the court should draw adverse inferences against Mr Love on that account. Mr Seitler relied on the statement of principle by Brooke LJ in Wisniewski v Central Manchester Health Authority  PIQR P323 at P340 where he said:
“In R v IRC ex parte T. C. Coombs & Co  2 AC 283 Lord Lowry explained at p. 300 the benefit which a court may be willing to confer on a silent defendant who gives some sort of explanation for his failure to give evidence, even if it is not a very good one. He said:
“In our legal system generally, the silence of one party in face of the other party’s evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party’s failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party may be either reduced or nullified.”
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 is no doubt as to the principle. It was recently invoked by the Supreme Court in Prest v Prest  2 AC 415 at  per Lord Sumption.
- It will be noted that Lord Lowry in R v IRC ex parte T. C. Coombs & Co referred to the court’s response to “a party” not giving evidence whereas Brooke LJ in Wisniewski referred to the court’s response to “a witness” not being called by a party.
- Mr Seitler submitted that the present case was one of the clearest and strongest cases for applying this principle, so as to require the court to draw powerful inferences adverse to Mr Love and in favour of Mr Ramsay. Mr Tager submitted that if I had regard to certain matters which were in evidence, which showed the unco-operative attitude adopted by the Hutchesons, I would understand the reasons why Mr Love was not calling either of the Hutchesons as a witness in this case.
THE JUDGE’S CONCLUSION ON THE INFERENCES TO BE DRAWN FROM THE ABSENCE OF WITNESSES IN THIS CASE
The judge found that, on the facts of this particular case, he did not draw any major inferences from the absence of the witnesses.
- My reaction to these submissions is as follows. I find that Mr Ramsay has raised a case which requires to be answered as to Mr Hutcheson having no authority to commit Mr Ramsay to the guarantee. This is not a case of a party with obviously relevant evidence to give declining to give evidence. This is a case where neither party has called either of the Hutchesons. There was no suggestion that I should draw any adverse inference against Mr Ramsay for failing to do so. Mr Ramsay has very good reasons for not calling either of the Hutchesons. Both of the Hutchesons were dismissed from their employment with GRH in or after October 2010. There followed acrimonious litigation between Mr Ramsay and the Hutchesons, where serious allegations of wrongdoing were made by Mr Ramsay against them. Those proceedings were later settled on confidential terms but I know enough of the terms to tell me that they involved a complete severance of the relationship between those parties.
- It would have been open to Mr Love to take steps, or to try to take steps, to call one or both of the Hutchesons. Not long after Mr Ramsay first raised with Mr Love his contention as to Mr Hutcheson’s want of authority, Mr Love contacted the Hutchesons and, initially at any rate, they co-operated with Mr Love and provided him with information which Mr Love used to seek disclosure of documents from Mr Ramsay. Further, the Hutchesons appeared to be willing to say that Mr Ramsay did know of, and did approve, the giving of the guarantee. However, the Hutchesons’ attitude to Mr Love later changed. Mr Love applied for a non-party disclosure order against them and although documents were obtained, Mr Love found, to his great surprise, that his application was opposed by the Hutchesons and they applied for an order that he pay their substantial legal costs.
- On the material before me, I consider that it is unlikely that the Hutchesons would have been prepared to give evidence voluntarily at this trial. One reason for thinking that is that Mr Ramsay reported Mr Hutcheson to the police for alleged criminal behaviour and Mr Ramsay has been interviewed by the police on more than one occasion in relation to that report. Mr Ramsay understands that the resulting police investigation is continuing. It would not be surprising if the Hutchesons did not wish to have their conduct investigated at a civil trial in advance of a decision being made as to a possible criminal prosecution. Further, Mr Seitler submitted that the Hutchesons were “admitted perjurers” and any evidence they might give would be unreliable. Not having heard the Hutchesons, I am not in a position to make any findings as to their reliability. I can speculate however in this way. It is entirely possible that if the Hutchesons came to give evidence that I would have been cautious before I accepted their evidence, in view of the allegation of previous perjury and in view of the fact that they are not disinterested witnesses. If I were to feel cautious about their evidence, that would not mean that I would automatically accept all and any evidence from Mr Ramsay to the contrary. In such a case, it would still be necessary for me to consider his evidence and assess it in the light of any contemporaneous documents and the inherent probabilities of the case.
- My overall conclusion on the submission, that I should draw an adverse inference against Mr Love by reason of the fact that he has not called either of the Hutchesons as a witness, is that any potentially detrimental effect on Mr Love’s case by reason of the Hutchesons not being called as witnesses is significantly reduced but possibly not wholly eliminated.
It is worth noting that the central finding – that Mr Hutcheson did have authority to commit Mr Ramsay to a guarantee was made on the basis of Mr Ramsay’s own evidence.
- Mr Ramsay’s own evidence establishes the very extensive, if not total, trust which Mr Ramsay placed in Mr Hutcheson to deal with business affairs on behalf of both the companies and Mr Ramsay himself. It is not said that there was ever any express or specific limitation as to the business or contractual matters (as distinct from domestic matters) which Mr Hutcheson was expected to deal with on behalf of Mr Ramsay. Mr Ramsay gave wide general authority to Mr Hutcheson when at the outset of their relationship he said to Mr Hutcheson: “I don’t have a strong business acumen: look after me”. Further, in the evidence I have quoted in paragraph 53 above, Mr Ramsay gave general evidence as to what he had told Mr Hutcheson as to when Mr Hutcheson could offer Mr Ramsay’s guarantee:
“Q. I’m going to ask you again, did you — the answer is either yes or no or I can’t remember — did you ever have a conversation with Mr Hutcheson at any time about offering a personal guarantee on your behalf when negotiating a new lease?
A. My Lord, I instructed Mr Hutcheson that it was necessary for me to be a guarantee on a lease, but not a personal guarantee outside of the business.
Q. I’m so sorry, say that again.
A. If I go back to Claridges –
Q. No, don’t go back to Claridges. Just repeat what you just said.
A. I did say to Mr Hutcheson, my father-in-law at the time, that if the business can’t be substantially supportive on that lease, then I would give a personal guarantee.”
- I find that when Mr Hutcheson committed Mr Ramsay to the guarantee in the lease of the premises, Mr Hutcheson was acting within the wide general authority conferred on him by Mr Ramsay at all times until Mr Hutcheson’s dismissal in October 2010. I also find, in particular, that in Mr Ramsay’s own words, which I have just quoted, that authority extended to Mr Hutcheson offering, on behalf of Mr Ramsay, Mr Ramsay’s guarantee in relation to a lease when the business required it. That formulation covers the facts of this case. Mr Ramsay may now regret the transaction in relation to the premises. He may particularly regret his involvement as a guarantor. He may consider that Mr Hutcheson did a bad deal. However, on my findings, he is not able to say that Mr Hutcheson exceeded his authority in any respect. I hold that Mr Ramsay, acting through his agent Mr Hutcheson, is bound by the guarantee in the lease of the premises.
EXCEPTIONS TO THE RULES IN RELATION TO ADVERSE INFERENCES TO BE DRAWN FROM THE ABSENCE OF WITNESSES
In Durrant -v- Chief Constable of Avon & Somerset Constabulary [2014[ EWCA 2922 (QB) the defendant was debarred from calling certain witnesses because of its failure to comply with directions. The judge held that, in a case where a party was debarred from calling witnesses in these circumstances.
- It was not appropriate to draw adverse inferences against certain witnesses or the defaulting party generally.
- However neither would the court draw inferences about the evidence that “might have been”. “
“In my judgment I am required to arrive at findings upon the evidence which I have, not the evidence which I might have had but do not have because of procedural default on the part of the Defendant.”
“SILENCE IS NOT NECESSARILY GOLDEN: THE PRINCIPLES AND CASE LAW SET OUT IN FULL”
See my article in Local Government Lawyer “Silence is not necessarily golden”.