The Issue
Where evidence has been destroyed or withheld by one party, the court may draw adverse inferences against that party. The equitable maxim is ancient: a party should not benefit from the destruction of evidence. Where a defendant's case is that enforcement activity by the claimant caused or contributed to the destruction of defence evidence, the absence of that evidence cannot be used as proof failure against the defendant. The wrong cannot produce its own exculpation.
The Law: How It Should Operate
Douglas v Hello! Ltd [2003] EWHC 786 (Ch); Keefe v Isle of Man Steam Packet Co [2010] EWCA Civ 683 — where a party fails to preserve or produce relevant evidence, the court may draw the inference that the evidence would have been adverse to that party. Arrow Nominees Inc v Blackhouse Ltd — the equitable principle that a party should not benefit from the destruction or withholding of evidence applies in civil proceedings. CPR 31.23 — failure to disclose documents may justify adverse orders.
How It Operated in Lawrence v HNW Lending Ltd
The Applicants alleged that enforcement activity — forced entries, evictions, removal of belongings and documents across multiple properties — caused or contributed to the destruction of defence materials. The court treated the absence of those materials as proof failure by the Applicants rather than as a basis for adverse inference against HNW. The wrong produced its own exculpation. Documents destroyed during HNW-authorised enforcement became the absence of proof that defeated Ms Lawrence's case.
"The question is not whether one court reached one adverse result. It is that the same failure of protection recurred across courts, tribunals, administration, policing and oversight — making the pattern visible only because the case passed through so many forums."
— Open Letter to the Lord Chancellor, 15 May 2026