CL-2022-000676 - [2025] EWHC 2486 (Comm)

Ultimately as indicated I am left with the following difficulties (i) large unaccounted for gaps in the gowns’ history, which could have led to contamination (ii) puzzling testing results which do not point squarely to manufacturing contamination (iii) lack of positive evidence of contamination in transit. In essence a concatenation of uncertainties.

Had the history of the gowns’ peregrinations been more clear, and had that disclosed that there was no obvious environmental cause of contamination I would – just - have formed the view that the evidence of manufacturing contamination was more probable than not.

As it is the other uncertainties – and in particular the lack of any proper chain of custody evidence - mean that I conclude that it is not possible to say that it is more probable than not that the contamination was caused on manufacturing. Essentially there are weak cases for both outcomes.

Although DHSC attempted to persuade me that the authorities (in particular the Popi M) favour a positive conclusion, I agree with Mr Samek that where there is a combination of weak evidence and massive evidential gaps (caused by a failure on the part of one party to provide relevant evidence) it is wrong to say that one should simply opt for the more probable of the two weak cases. Here one might say that there is a 40% case for DHSC, a 30% case for Medpro and an evidential gap of 30%. One cannot simply cancel out the 30% which would tell us whether (for example) there were the kinds of conditions which might engage Mr Atchia’s speculative theory, or conversely show that nothing particularly risky happened.

Because the missing evidence is evidence legally within DHSC’s control that absence must lie at its door. This is in essence a case where an adverse inference is entirely sensible and permissible on the basis of the authorities (such as Wiszniewski v Central Manchester Health Authority [1998] PIQR 324, 340; Magdeev v Tsvetkov [2020] EWHC 887 (Comm), [147]-[154] and Efobi v Royal Mail Group [2021] UKSC 33, [41]). On the basis of the evidence I conclude that (i) had sterility been capable of being tested for this way and (ii) had the case not already been decided on other bases I would have concluded that taking the absence of evidence and the evidence favouring in transit contamination together the claim failed, alternatively that DHSC had not discharged the burden of proof upon it.