11.45A forensic inference1These are generally referred to as adverse inferences, but this is not a distinctive classifying feature as evidential inferences may also be adverse. The term forensic emphasises the basis on which the inference is drawn rather than its impact. may be drawn if a party or a witness refuses to co-operate with the tribunal. This section deals with inferences that lead to findings of fact; lack of co-operation can also provide a basis in regulatory jurisdictions for drawing inferences about good repute or fitness to practice.2Tacsi Gwynedd Ltd v Deputy Traffice Commissioner for the Welsh Traffic Area [2015] UKUT 0668 (AAC) at [84]–[88]. The evidential inference is that co-operation would be detrimental to the party concerned. Once drawn, it is then taken into account in assessing the probative worth of the evidence as a whole. The effect may well be a decision that is less favourable than it would have been if the party had been co-operative.3Fairclough Homes Ltd v Summers [2012] 1 WLR 2004 at [52]. A forensic inference may have a statutory basis.4HESC Rules r15(4)–(5).

11.46It is not always necessary to consider whether to draw a forensic inference from lack of co-operation. There are two circumstances in which it is not necessary.

11.49There is no limit to the circumstances in which a forensic inference may be appropriate. They cover almost every lack of co-operation with the tribunal, including the following.

11.50Re O (Care proceedings: Evidence)6[2004] 1 FLR 161 at [13] and [16]. concerned an allegation of violence by a mother towards her children. The mother refused to give evidence and Johnson J held that it was possible to infer from this that the allegations of violence were true.7[2004] 1 FLR 161 at [13] and ]16].

11.51This is the basis of the rule in The Ophelia.8[1915] P 129 and [1916] 2 AC 206. It does not apply to routine destruction of documents.9R(IS) 11/92 at [36]. As the contents of destroyed documents may be proved by other evidence,10R(IS) 11/92 at [38(f)]. it may not be necessary to draw an inference.

11.52Al-Khatib v Masry11[2002] 1 FLR 1053. concerned ancillary relief on divorce. The wife alleged that the husband had assets in excess of £200,000,000. The husband failed to make anything like an accurate and complete disclosure. Munby J held that the evidence was not sufficient to allow him to find that the husband had the amount alleged, but that it was sufficient to infer that he had sufficient assets to allow the court to make a settlement at the level that the wife was claiming.12[2002] 1 FLR 1053 at [96]. An appeal against Munby J’s decision was allowed by the Court of Appeal on consent terms following mediation. The background is reported at [2005] 1 WLR 381. It does not affect the principles underlying the judge’s reasoning for which the decision is cited here and elsewhere in this chapter. This was based on the analysis put by counsel for the wife that it was permissible to infer that the husband had calculated that he would obtain a more favourable settlement on this basis than if he made full disclosure. The judge used as a cross-check on this inference the evidence of the scale of the husband’s business activities over 20 years and the commission he had been capable of earning.

11.53Secretary of State for Work and Pensions v Jones13[2004] 1 FLR 282. concerned paternity. The mother alleged that a man was the father of her child, but he refused to take part in DNA testing. The Court of Appeal held that this refusal allowed the court to accept the mother’s evidence of paternity.14[2004] 1 FLR 282 at [11]–[15].

11.54Re S (Unco-operative mother)15[2004] 2 FLR 710. concerned a mother’s willingness to participate in family therapy in order to help her children establish a relationship with their father. Thorpe LJ said that the weak reasons given by the mother could be used as the basis for an inference that she lacked commitment to this process.16[2004] 2 FLR 710 at [21]–[22].

11.55Secretary of State for Health v C (Tribunal: Failure to draw inference)17(2003) Times 30 January. concerned a man’s suitability to work with children. A woman alleged that he had raped her. On medical advice, she did not give oral evidence. The man did not attend to give evidence. The Court of Appeal held that, in those circumstances, the tribunal was entitled to conclude that the man had decided that his account could not withstand oral examination.

11.56A party has no right to silence, even if this means disclosing matters relevant to criminal proceedings. As Megaw LJ explained in Jefferson Ltd v Bhetcha:18[1979] 1 WLR 898.

11.58However, a forensic inference may not be drawn from a party’s refusal to disclose information that is privileged.20Lord Chelmsford in Wentworth v Lloyd (1864) 11 ER 1154 at 1155; Aldous LJ in Oxford Gene Technology Ltd v Affymetrix Inc (No 2) [2001] RPC 18 (p310 at [317]).

11.59By drawing a forensic inference, a tribunal uses lack of co-operation to identify one party’s attitude to the other party’s case. It is, therefore, always relevant to consider whether there is another explanation for the lack of co-operation. In Re A (A minor) (Paternity: Refusal of blood test),21[1994] 2 FLR 463. Waite LJ said of an alleged father who, within his rights, refused to provide blood samples for testing:

11.63If a party fails to co-operate but the circumstances do not allow the tribunal to draw a forensic inference, the effect is that the tribunal has to deal with the case on the basis of the evidence that is available. For example: a parent in a child support case may refuse to co-operate because of the effect that the proceedings are having on a new relationship. In those circumstances, the tribunal cannot draw a forensic inference against that party. It has to deal with the case on the evidence available. That evidence is likely to come from the other parent and may be out-of-date or not directly relevant to the issue. In the absence of evidence from the parent concerned, the tribunal may have to draw inferences from the evidence available in order to bring it up-to-date or to relate it to the issue. But these are evidential inferences. The reasoning process does not involve a forensic inference, because the party’s lack of co-operation is not indicative of the strength of the case that could be put to the tribunal.

11.64If a tribunal concludes that the lack of co-operation by one party to the proceedings indicates that party’s view of the weakness of the case that could be presented, it may take this into account in assessing the evidence as a whole. It may form part of the tribunal’s assessment that leads it to accept the other party’s evidence on a particular point, as in Re A (A minor) (Paternity: Refusal of blood test),28[1994] 2 FLR 463. where the refusal to co-operate was used to show acceptance of the allegation of paternity. Or it may form part of the tribunal’s reasoning that leads it to draw an inference from the evidence available to it, as in Al-Khatib v Masry,29[2002] 1 FLR 1053. where the failure to co-operate was used to show that the husband had sufficient assets to allow a particular order to be made.