[2024] EWHC 3625 (TCC)

In the witness box, Mrs Davies told me that she took minutes of the meetings which she attended, which was consistent with Mr Lomax’s evidence. She told me that she had left those minutes in a drawer in her desk at Orchard House’s office.

In her trial witness statement, Mrs Davies says that she was at the meeting on 7 November 2018 “to assist in taking minutes and recording any agreements that were made”. She went on to state:-

“ Due to the passage of time, I have made this statement based on my own detailed notes that I made in April 2022 when events were fresher in my mind”.

Mrs Davies is said to have attended meetings (and, therefore, presumably to have taken minutes) on 6 November 2018, 27 November 2018, 12 February 2019, 8 March 2019, 19 March 2019, 26 April 2019 and 21 May 2019.

At no point have the Claimants disclosed copies of the minutes taken by Mrs Davies. In fact, I understand that the first search for those minutes took place during the course of the trial. I was told by Mr Horne after the search had taken place that it had revealed no documents, either in hard copy or electronic form.

It is unfortunate that an earlier search was not undertaken, bearing in mind that it was clear from Mrs Davies’ trial witness statement that she had taken minutes of meetings which she had attended. It is difficult to understand how they did not come to light when Mrs Davies was producing her “detailed notes” in April 2022.

Given that Orchard House is inviting me to conclude that agreements were reached at various meetings in relation to the Purchase Price of Plot C, I would have expected that it would have considered notes of those meetings to have been a very persuasive source of evidence. The absence of this evidence does not assist its position.

Mr Aslett invites me to draw an adverse inference from the absence of the minutes. He suggests that there is a serious risk that they have been destroyed and that the fairness of the trial process has been compromised. He points out that there is no evidence as to when or how the notes were lost or destroyed. He complains that the late stage at which it was confirmed that the documents were not available deprived him of the opportunity to cross-examine Mrs Davies or Mr Lomax about the missing minutes.

Mr Aslett refers me to Malhotra v Dhawan 8 Med LR 319, CA, where a defendant accountancy firm, albeit not deliberately, destroyed files which were relevant to the issues in a claim brought against it by a former partner. In the Court of Appeal Morritt LJ made the following observation:-

“I am bound to act on the principle laid down in the well-known case of Armory v Dalamirie, and presume, as against the person who destroyed the evidence, everything most unfavourable to him, which is consistent with the rest of the facts, which are either admitted or proved.”

Mr Aslett also refers me to Gulati v MGN Limited [2015] EWHC 1482, where it was highlighted that any inferences that are drawn must be in line with other evidence in the case and that the Court is not to ignore evidence that is made available or to make speculative or fanciful findings.

I do not propose to draw adverse inferences as a result of Orchard House’s failure to disclose the minutes of the various meetings, given that, any such inferences would have to be in line with other evidence in the case. Moreover, I do not think for one moment that either Mr Lomax or Mrs Davies would have destroyed or concealed the minutes on the basis that they did not support Orchard House’s claim.

However, that does not mean that the issue is of no consequence. It is. If the minutes had supported the case advanced by Orchard House, it may well have strengthened its position on the key issue of whether an initial agreement had been reached on the Purchase Price in relation to Plot C. The absence of those minutes means that Orchard House has been unable to provide me with any contemporaneous documentation to corroborate its account of a concluded agreement. In that sense, it has undermined Orchard House’s claim and it is not an issue which I can, or should, overlook.