TC09659 - [2025] UKFTT 01211 (TC)

Fecha: 18-Sep-2025

Adverse inferences - Mr Perdicou

Adverse inferences - Mr Perdicou

25.

HMRC invited the Tribunal to make adverse inferences from SKM’s failure to call Thomas Perdicou (“TP”) to corroborate the trading with BTL. HMRC asserted that the failure to call TP went to the question of evidence of how the trading started and whether there was evidence of commercial negotiation.

26.

The law on adverse inferences from failure to call a witness is conveniently set out in Barnes v Blackburn with Darwen BC [2022] EWHC 2598 (TCC) (“Barnes”):

“32.
At one end of the spectrum is 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 ….
The intermediate position is where, 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.
At the other end of the spectrum is 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 ….”.

27.

We also took into account British Airways PLC v Airways Pension Scheme Trustee Ltd [2017] EWHC 1191 (Ch) (“British Airways”) at [141-143] where in summary Morgan J stated that before the court could draw an inference and made a finding of fact adverse to a witness who was not called, it needed to ask is there some evidence, however weak, to support the suggested inference or finding on the matter in issue.

28.

We considered the relevant factors to be as follows:

(1)

while it would have been helpful to have direct evidence from TP of how SKM first came into contact with BTL and how the trading with BTL was conducted, it was not crucial because evidence was provided by both SF and KG, albeit this was indirect and therefore not as compelling as the direct evidence TP could have given as the person who actually had the alleged introductory conversation with Ripley and all or most of the trading communications with BTL;

(2)

a good explanation for TP’s absence was provided (having worked hard to build the business, TP was upset about the decision to close SKM and in consequence had fallen out with SF and KG); and

(3)

importantly, if HMRC had considered TP’s evidence to be significant (especially as the burden of proof was on HMRC), they could have called him themselves since they had been aware of his existence for over a year before the case was heard.

29.

In terms of the Barnes categorisation, the failure to call TP was therefore towards the end of the spectrum where it would be wrong to draw any adverse inference. TP’s evidence was not particularly critical and his absence was explicable. Moreover since HMRC had had the opportunity to call him themselves, it was not appropriate to hold his absence against the Appellants, especially as the burden of proof was on HMRC. Accordingly we declined to draw any adverse inferences from the absence of TP.