The recent case of Thomas Barnes & Sons Plc v Blackburn [2022] EWHC 2598 (TCC) has recently provided some useful guidance on the inferences that should be drawn from absent witnesses.

HHJ Stephen Davies provided three different approaches in relation to absent witnesses:

1. “Where a party has been unable to call a witness (or one who would give an open and honest account) for reasons outside its control, where it would plainly be wrong for the court to hold that against the party, whether by drawing an adverse inference against that party on a particular issue or by taking the absence of oral evidence from that witness into account more generally”
2. “For reasons which have not been sufficiently explained or justified, a party has not called a witness who was involved in the events in question on that party’s side. If the absence of such a witness means that the party is unable to adduce oral evidence in relation to one or more of the factual issues in the case, whereas the other party has adduced such evidence, then it seems to me that the court must make its decision only on the basis of the evidence before it, even if that means there is no evidence from that witness to take into account when deciding the factual issues in dispute, and can take into account the absence of evidence from any witness from that party.”
3. “Where the court is being invited to draw a positive adverse inference against that party in relation to a specific issue from its insufficiently explained or unjustified failure to call a crucial witness to give evidence on that issue”

It is clear here that the Judge considered three scenarios along a scale and what the Court should do in response to each, or what inferences they should draw.

This will be helpful as an earmark going forward to know what, if any, inferences the Courts will likely draw in the absence of key witnesses of fact. Plus, it also provides some useful guidance on how to avoid adverse inferences in the event that your own witnesses are unable to be called for reasons outside of your control. As long as this is explained to the Court, they should not draw any adverse inference.