The Ophelia

CIS/620/1991

SOCIAL SECURITY ACT 1986

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

[ORAL HEARING]

This is a claimant’s appeal, brought by leave of the chairman of the social security appeal tribunal, against a decision of that tribunal cased 9 July 1991 which confirmed a decision issued by the adjudication officer on 15 November 1990. The claimant had been ill for some time. Sadly, he died on 11 January 1992. The Secretary of State has appointed a lady, to whom I shall refer as “Mrs V” (“V” representing her Christian name), to carry on these proceedings on behalf of the estate. I shall refer to the deceased as “the claimant” – for it is thus that, of course, he is referred to throughout the bulk of the papers. My own decision is as follows:

(1) The decision of the appeal tribunal dated 9 July 1991 is erroneous in point of law and is set aside.

(2) It is expedient that I should make fresh and/or further findings of fact and, in the light thereof, give the decision which I consider that the appeal tribunal should have given.

(3) Neither –

(a) the decision given by the Supplementary Benefits Commission on an unknown date in 1978, nor

(b) the decision given by the benefit officer on or about 24 February 1983, nor

to the effect that the claimant and Mrs V were, at the material times, living together as husband and wife, falls to be reviewed, whether pursuant to section 104 of the Social Security Act 1975 or otherwise.

My conclusion is, in fact, the same as that reached by the appeal tribunal. The vitiating error of law lies in the inadequacy of the reasons recorded on the relevant form AT3. A glance at the length of this decision will confirm that I have endeavoured to supply that deficiency.

On 26 March 1992 I held an oral hearing of this appeal in Liverpool. That hearing lasted a full day. It is a tribute to the respective representatives that I found the hearing anything but tedious. The claimant was ably represented by Mr M Rathfelder, Welfare Rights Officer of the Manchester Royal Infirmary. The adjudication officer was represented by Mr J McManus, of counsel, instructed by the Solicitor to the Departments of Health and Social Security. My debt to Mr McManus appears as I deal below with the 15 or so authorities to which he referred me. Most of those authorities are from textbooks and law reports which are not normally regarded as mines of information on social security law. Mr McManus thoughtfully furnished both Mr Rathfelder and myself with full photocopies. Since the hearing was in Liverpool (i.e. far afield from the Commissioners’ normal library facilities), that was particularly helpful. I am grateful, too, for the care with which both Mr Rathfelder and Mr McManus had summarised their submissions in writing. In a case of this complexity, that greatly facilitates the writing of the decision. Mrs V attended throughout the hearing.

The narrative

Even after several years as a Commissioner, I have not ceased to be surprised by the multifarious facets exhibited by the narratives of “living together” cases. (“All human life is there.”) This case is no exception.
The claimant was born in 1917. In December 1962 he married Mrs V. But in 1974 the claimant moved from the matrimonial home; and in 1975 Mrs V divorced the claimant on the grounds of cruelty. However, in 1978 Mrs V was seriously injured in a traffic accident. The younger of the two sons of the marriage was then aged only 13. The claimant was asked (I am not sure by whom) to move into Mrs V’s home so as to look after the children. He complied. The home at that time was a flat. The claimant shared a bedroom with the two boys – and he undertook all the household tasks. He claimed – and was awarded – supplementary benefit in respect of the whole family unit. (This is the “decision” to which I refer in paragraph 1(3)(a) above.) In August 1982 the claimant became entitled to his retirement pension.
On 24 February 1983 the claimant, Mrs V and their elder (non-dependent) son moved to a large, three-bedroomed, privately rented terraced house (“No 8”). The move, of course, resulted in a reconsideration of the supplementary benefit position. An award was made to the claimant in respect of himself and Mrs V. (This is the “decision” to which I refer in paragraph 1(3)(b) above.)
In July 1985 Mrs V attained the age of 60. She claimed retirement pension in her own right. An award was made, at a reduced rate. The claimant sought to be paid supplementary benefit as a single man (i.e. as the sole member of the relevant assessment unit). On 15 August 1985 he was interviewed by an officer – or officers – of the Department of Health and Social Security. The upshot was that supplementary benefit continued in payment in respect of both him and Mrs V (on the basis, of course, that they were living together as husband and wife). (This is the “decision” to which I refer in paragraph 1(3)(c) above.)
It is to be noted that the claimant did not, at the relevant times, make any appeal against any of the “decisions” to which I have referred in paragraphs 4, 5 and 6 above. In view of the claimant’s surname, I thought it worth, in the course of the hearing before me, enquiring as to the claimant’s command of the English language. I was given to understand that English was the language which he naturally spoke.
The papers indicate that in or about August 1985 Mrs V announced that, if the claimant were not assessed to supplementary benefit on the basis that he was a lone claimant, she would “throw him out”. The papers further indicate that Mrs V has made similar announcements upon other occasions. I anticipate the narrative to the extent of saying that, at the end, the claimant and Mrs V had their home at No 8.
In July 1986 the claimant was advised that he was no longer entitled to supplementary benefit because –

(a) Mrs V was entitled to retirement pension at the full rate, and

(b) that pension, when added to the claimant’s own retirement pension, brought the resources of the assessment unit to a sum which exceeded the requirements of the unit.

Payment of supplementary benefit ceased. Again, there was no appeal.

On 27 January 1987 the claimant completed a claim form for supplementary benefit. On that form he indicated that he did not live with Mrs V as husband and wife and that his position at No 8 was that of a boarder (“boarder” was a term of art in the supplementary benefit legislation) and nothing more. On 2 March 1987 he and Mrs V were interviewed. For reasons which appear below in this decision, the papers contain no first-hand record of that interview. There is, however, a summary in paragraph 9(2) of the “Reasons” set out in the submission which the local adjudication officer made in respect of the appeal against his decision of 10 March 1987 (as to which see my next paragraph).
On 10 March 1987 the adjudication officer issued a decision in the following terms:

“The claimant and his ex-wife [Mrs V] are living together as husband and wife and, as a consequence, their requirements and resources should be aggregated for the purposes of paragraph 3(1) of Schedule 1 to the Act [i.e. the Supplementary Benefits Act 1976] as those of an unmarried couple.”

Against that decision the claimant did appeal; and it was that appeal which set in train the prolonged forensic saga which culminated in my hearing in Liverpool.

On 12 April 1988 the appeal tribunal gave a decision to the effect that the claimant and Mrs V were living together as husband and wife. It appears that no copy of that decision is now available. That is, perhaps, the less matter – for by a decision dated 30 April 1990 the Commissioner (not myself) set aside the decision of 12 April 1988 and remitted the case for rehearing. That Commissioner regarded as wholly unacceptable the appeal tribunal’s cursory approach to the making and recording of findings of material fact. As I have indicated, I have seen no copy of the relevant decision of the appeal tribunal. The Commissioner, however, quoted sufficient of the entries upon the relevant form AT3 to make it clear to me that there was not, on 12 April 1988, any adequate investigation of the (undoubtedly unusual) circumstances in which the claimant and Mrs V were living under the same roof.
In the meantime there had been an interlude in the domestic situation at No 8; and the interlude itself was somewhat bizarre. In 1988 – on a date which is nowhere specified in the papers – Mrs V remarried. I shall refer to her second husband as “Mr F”. The fact is, however that Mr F’s full surname is almost the only thing that I know about him. It seems that Mrs V and Mr F lived together “for a matter of days”. There was then a divorce; but of that divorce I know even less then I do about the marriage which preceded it. (I do not, for example, know the year in which it took place.) From an interjection which I permitted Mrs V to make in the course of the hearing, I derived the clearest impression that Mrs V herself is at a loss to explain how and why Mr F ever entered the narrative. When I stressed the word “almost” a few lines above, it was because I do know that Mr F ran a bed and breakfast establishment in Manchester (the city in which No 8 is situated). From 3 May 1988 until 9 February 1990 the claimant was absent from No 8. For most – if not all – of that period he lived at Mr F’s establishment. The claimant returned to No 8 on 9 February 1990 in circumstances which paralleled those surrounding his return to Mrs V in 1978; save that on the later occasion it was he, and not Mrs V, who was so ill that he required care and attention. (We are told that blood is thicker than water. But in this case – whatever may have been the “living together as husband and wife” situation from time to time – one cannot but be affected by the durability of the emotional bond deriving from a marriage in 1962, notwithstanding that in 1975 that marriage had been dissolved on the grounds of cruelty.)
When the claimant moved to Mr F’s establishment, he claimed – and was awarded – income support. Income support remained in payment until 10 April 1989. From that date, of course, boarders’ housing costs were transferred to the housing benefit scheme. Since the claimant had his retirement pension, his income exceeded the applicable amount as derived from the income support legislation. On 10 January 1990 Mrs V successfully claimed income support for herself.
After the claimant had, on 9 February 1990, returned to No 8, his benefit entitlement was, yet again, examined by the local adjudication officer. In the light of the then prevailing circumstances (including he claimant’s need for care and attention), the adjudication officer decided that the claimant could, indeed, be treated as a lodger at No 8 – and not as the partner of Mrs V. The situation was to be reviewed in six months time. On 2 August 1990 the claimant and Mrs V were visited; and separate statements were taken from them. A higher adjudication officer determined that the claimant and Mrs V should be treated as not having lived together as husband and wife during the period since 9 February 1990. The higher adjudication officer took the view that –

(a) it was natural that the claimant should have, in his serious illness, turned to his former wife; and

(b) the claimant was living at No 8 as a “commercial lodger”.

On 27 September 1990 an appeal tribunal heard the case which the Commissioner had remitted by his decision dated 30 April 1990 (cf paragraph 12 above). Mr Rathfelder appeared for the claimant. Both the claimant and Mrs V attended. The appeal was successful. The appeal tribunal, after carefully reviewing the evidence, decided that from 10 March 1987 the claimant and Mrs V had not been living together as husband and wife. Too much must not be read into the date (i.e. it cannot be assumed that the tribunal was of the view that before 10 March 1987 the claimant and Mrs V had been living together as husband and wife). In Box 3 of the relevant form AT3 the phrase written is “from the relevant date”. Mr McManus told me that that had been accepted as being a reference to the date of the adjudication officer’s decision which was under appeal (cf paragraph 11 above). No one present at the hearing before me demurred from that. I am bound to observe, however, that I myself would have thought “the relevant date” to have been 27 January 1987; i.e. the date of the claimant’s relevant claim (cf paragraph 10 above). All that, however, is now water under the bridge.
What is of significance in the context of this appeal is the opening of the chairman’s note of evidence on the form AT3 relevant to the hearing on 27 September 1990:

“Mr Rathfelder: The decisions in question on living together go back to 1978. The appeal made was not only against the decision of 10.03.87 but also against earlier decisions.

Chairman: That is not an acceptable interpretation of the Commissioner’s remission to the Tribunal. The Commissioner clearly states in paragraph 2 that the Adjudication Officer made his decision on 10.03.87 against which there is an appeal. The issue of the living together situation at dates earlier than those covered by the decision of March 1987 would have to be raised in some other way.”

The chairman was, of course, entirely correct. I have, however, set out this brief exchange because it foreshadows the substance of the appeal before me.

Paying heed to the final sentence of the chairman’s comments quoted in paragraph 17 above, Mr Rathfelder, by a letter dated 15 October 1990 and countersigned by the claimant and Mrs V, sought leave to appeal out of time against each of the decisions to which I refer in paragraph 1(3) above. Unsurprisingly, such appeal was not admitted for hearing. Undaunted, Mr Rathfelder, by letter dated 5 November 1990, applied for a review of those decisions pursuant to section 104(1)(a) of the Social Security Act 1975. His contention was that those early decisions had been given in ignorance of, or had been based on mistake as to, material facts. He sought to evade any restriction upon the payment of arrears by invoking the erstwhile regulation 72(1)(a) of the Social Security (Adjudication) Regulations 1986. He claimed that the decisions had been erroneous by reason only of errors and/or omissions on the part of officers of the Department. Specifically – he alleged – questions had not been asked of the claimant in respect of the criteria “established and approved in the Supplementary Benefits handbook and the decision in Crake v The Supplementary Benefits Commission”. Mr Rathfelder was in some difficulty in the context of particularising his allegations; for almost all the relevant documents which had been in the hands of the Department had been destroyed – or were otherwise unobtainable. That difficulty he met thus:

“…. we would rely on the principle established in the case of The Ophelia, 1916, that the documents which have been destroyed supported my client’s case.”

With his letter of 5 November 1990, Mr Rathfelder enclosed a photocopy of pages 229-230 of the report of The Ophelia in the Privy Council (cf paragraphs (8) to (11) of Appendix I to this decision). That reference to The Ophelia – and the misunderstanding which underlay it – are the principal causes of –

(a) the instructing of Mr McManus, and

(b) the inordinate length of this decision.

Mr Rathfelder may feel somewhat aggrieved that so much of the hearing was and so much of this decision is devoted to The Ophelia. (My notebook records his comment: “I do not want over much made of The Ophelia.”) But I know from other cases which have been before me recently that in this jurisdiction a certain mythology is building up round The Ophelia. It is high time that that mythology was confronted. At least such confrontation is not an exercise in respect of which the claimant will have to bear any of the costs.

On 15 November 1990 the local adjudication officer issued the decision from which directly stems this appeal to me. That decision was a refusal to review any of the decisions to which I refer in paragraph 1(3) above. When the claimant carried the matter to the appeal tribunal, the local adjudication officer made a very long and detailed submission. Unsurprisingly, perhaps, only two brief paragraphs of that submission were devoted to The Ophelia. On that aspect of the case the local adjudication officer’s conclusion was this:

“Furthermore I would submit that notwithstanding the ‘Ophelia’ case, the fact that documents have been destroyed does not of itself [the adjudication officer’s emphasis] mean that previous adjudication officer decisions were incorrect.”

As will appear below, that was an accurate interpretation of the relevant law.

The appeal tribunal heard the case on 9 July 1991. The claimant did not attend, but Mrs V did. Their case was presented by Mr Rathfelder. The appeal tribunal unanimously found that there were no grounds justifying the review of any of the three relevant decisions. The recorded reasons stressed that –

(a) it was for the claimant to establish that there were grounds for such review;

(b) the claimant had failed to establish that any of the decisions complained of had been given in ignorance of, or had been based on mistake as to, some material fact; and

The tribunal also (justifiably, in my view) commented upon the claimant’s failure to appeal against any of the three decisions.

Although the findings of fact and the reasons recorded by the appeal tribunal on 9 July 1991 were relatively brief (certainly much briefer than this decision of mine), I do not regard them, of themselves, as inadequate. The tribunal’s error of law – and this was conceded by Mr McManus – lay in its failure to grapple with Mr Rathfelder’s reliance upon The Ophelia. I quote from the chairman’s note of evidence:

“The Representative relied on 2 pages of dicta of the Privy Council in the Admiralty Case ‘The Ophelia’. The Chairman did not consider this adequate and wanted a copy of the whole decision in order to assess whether it has any relevance to this case.”

In the recorded reasons was this sentence:

“The Tribunal did not accept reliance on the ‘Ophelia’ case, because the whole report had not been put before the Tribunal to enable them to make an informed decision as to whether this case should be applied or should be distinguished.”

The chairman, there and then, gave leave to appeal to the Commissioner.

Now it is, of course, correct – as Mr Rathfelder has urged – that in such circumstances an appeal tribunal ought normally to adjourn in order that a full version of a cited authority might be produced and consulted. But the circumstances of this case were not entirely normal. As I have said in paragraph 2 above, the argument before me lasted a full working day – and many authorities ware cited to me, most of them from sources seldom invoked before the adjudicating authorities. I say without hesitation that the appeal tribunal is not the appropriate forum for that type of exhaustive investigation of the law. I should be very sorry were that observation to be interpreted as being in any way derogatory of appeal tribunals. Appeal tribunals, duly guided by their chairmen, are perfectly capable of examining and pronouncing upon legal issues. They do it regularly. But there are legal issues and legal issues. As a matter of sheer practicality, the legal issues raised by The Ophelia call for the time which the Commissioner can readily give to their airing and resolution. (What chairman could be expected to record reasons remotely approaching the length of this decision?) The chairman in this instance adopted a course which speedily brought The Ophelia before the Commissioner. Technically, there was error of law. In my view, however, the chairman’s course was beyond criticism.

The missing documents

The earliest document in the papers is the submission made by the local adjudication officer in respect of the claimant’s appeal to the tribunal against the decision issued on 10 March 1987 (cf paragraph 11 above); and even subsequent to that submission there are gaps in the documentation. To give evidence before me Mr McManus called Mrs B Allman, an adjudication officer at the Rusholme office of the Department of Social Security. No 8 is in the area covered by that office. Mr F’s establishment (cf paragraph 13 above) is in the area covered by the Longsight office of the Department. Mrs Allman’s examination and cross-examination ranged over a number of matters concerned with the Department’s dealings with documents in general and with the documents particular to the claimant in this appeal. I make no attempt here to rehearse all her answers. She was obviously a sincere and honest witness. On the basis of her evidence I make the following findings of fact:

(a) Procedures are prescribed by the Department in respect of the preservation and destruction of papers which refer to the cases of individual claimants.

(b) The general rule is that if for 18 months there is no action in respect of documents in a case file, those documents are destroyed. That rule is based upon the simple consideration of storage space.

(c) An appendix in the Office Administration Code lists various types of documents; and in respect of each type are indicated the respective periods after which such documents are to be destroyed, “weeded” or put into storage. Mrs Allman made no pretence at being able to give details of the list in the Code; but she was quite certain that the latest claim in any given file would never fall to be destroyed.

(d) In the middle to late 1980s a “case paper location computer” was introduced. That computer would produce a list of the names of cases in which no action had been taken for 18 months. The papers in such cases would then be destroyed, subject to such exceptions as were prescribed in the appendix referred to in sub-paragraph (c) above. No record is – or was – kept of the identity of documents so destroyed. The case paper location computer is now out of use.

(e) Where a claimant moves from the area of one office to the area of another, the normal procedure is for the new office to ask the old office for that claimant’s file. The new office would, by form A51, make a “transfer request”. The file would be despatched by the old office. The new office would send a receipt to the old office. The old office keeps a book in which such transfers are recorded. Although those books themselves have a time limit for their preservation, none such have recently been destroyed at the Rusholme office.

(f) The procedures outlined in sub-paragraphs (a), (b), (c) and (e) above have been in force for “quite a long time” (Mrs Allman’s phrase).

(g) The Rusholme office has attempted to trace the missing case papers relating to the claimant – but entirely without success. I expand upon this aspect of the case in my next three paragraphs.

(I wish to make quite clear that the foregoing facts are found upon the basis of the evidence which I heard and for the purposes of this case only. They are not to be treated as being of any general application.)

I extract the following brief facts from the narrative as set out in paragraphs 9 to 16 above:

(a) In July 1986 payment of supplementary benefit to the claimant ceased. He made no appeal against that.

(b) It was not until 27 January 1987 that the claimant made a fresh claim for supplementary benefit. By then a prompt – and perfectly proper – application of the 18 months rule (cf paragraph 23(b) above) would have led to the destruction of all of his case papers other than such as were excepted by the specific provisions of the appendix re-erred to in paragraph 23(c) above.

(c) The claim of 27 January 1987 was disallowed by the adjudication officer; and on 12 April 1988 the appeal tribunal upheld such disallowance. It was not until 30 April 1990 that the Commissioner set aside the appeal tribunal’s decision and referred the case for rehearing.

(d) In the meantime (or 3 May 1988) the claimant had moved to the area of the Longsight office and made – to that office – a claim for income support.

It is quite certain – as Mrs Allman readily conceded – that there have disappeared some documents which, had the prescribed procedures been adhered to, ought not to have disappeared. (A glaring example is the form AT3 recording the appeal tribunal decision of 12 April 1988.) Whether such documents were destroyed by accident or were destroyed through misapplication of misunderstanding of the prescribed procedures or were lost in some (unrecorded) transmission between the two Departmental offices involved, it is impossible for me to say. I cannot think – and dismiss the possibility – that they were destroyed with any improper motive; for such destruction would have availed no one anything. I make clear that I am, in this paragraph, referring to documents which came into existence at the time of and after the fresh claim which the claimant made on 27 January 1987. In the end, the claimant succeeded with that claim (cf paragraph 16 above); and there is not a shred of evidence that his progress to that success was at any stage hampered by the absence of documents which had once been held by the Department. Nor is the current absence of those documents of any significance in the context of the claimant’s attempts to obtain a review of decisions given in, respectively, 1978, 1983 and 1985.
The position in respect of documents which came into existence prior to 27 January 1987 is somewhat different. The overwhelming presumption must be that all those destroyed in (possibly over-zealous) application of the 18 months rule; and I so find. I have said “possibly over-zealous” because it is on the cards that a very few of those documents should have survived pursuant to the appendix to the Office Administration Code. Again I dismiss the possibility of any improper motivation. As I have observed in paragraph 7 above, the claimant made no appeal against any of the three decisions involved. Any reasonable person – whether officer of the Department or passenger on the Clapham omnibus – would have assumed that the issues embraced by each of the three decisions were as dead as the dodo.

The Ophelia

I have attempted to summarise The Ophelia in Appendix I to this decision. If that seems rather a lengthy summary, I can only plead that some 80 pages of the Law Reports are devoted to the two hearings (Prize Court and Privy Council). To have carried my summary into the main body of this decision would have tediously impeded the flow of the reasoning. Accordingly, I take Appendix I as now read; and I subdivide my comments into a number of questions.
Of what import is The Ophelia in the modern law of evidence?

The Ophelia was a case on the law of prize; and that is heavily underlined by the President’s own words as well as by the authorities invoked by him (see paragraphs (5) to (7) of Appendix I). It is true that the Privy Council said that “the substance” of “the old doctrine” “remains and is as forcible now as ever, and [it] is applicable not merely in prize cases, but to almost all kinds of disputes” (see paragraph (10) of Appendix I). The fact remains, however, that the case seems to have passed out of current legal thinking. As Mr McManus pointed out, there is no reference to The Ophelia in the latest editions of either of the leading textbooks on the law of evidence (i.e. Phipson and Cross); nor do the red indices of the official Law Reports cite any recent applications of the case.

To what extent is The Ophelia binding upon the adjudicating authorities?

(1) Mr McManus’ first observation upon this point was that, in England, judgments of the Privy Council are of no more than persuasive authority. He referred me to two well-recognised textbooks by way of support for his proposition; but such support is not really necessary. By way of quibble, I might comment that, whilst I pretend to no expertise in the practices and conventions of the Prize Court (now subsumed into the Admiralty jurisdiction of the Queen’s Bench Division), I should have thought that judgments of the Privy Council may well have been binding upon the Prize Court. But, of course, the answer to that quibble is that the adjudicating authorities are not – and never have been – the Prize Court.

(2) Of more practical import in this context is the freedom which the adjudicating authorities undoubtedly enjoy from the strict rules of evidence which prevail in ordinary, adversarial courts. (Even there, in non-jury cases – in the Commercial Court especially – the more technical of the rules of evidence are not always insisted upon.) No adjudicating authority will lightly disregard a judgment of the Privy Council upon the mere ground that such a judgment is of only persuasive authority. That is, however, a very different thing from disregarding an antique rule of evidence in a case where such a rule flies in the face of commonsense. But does The Ophelia fly in the face of commonsense?

What does the Ophelia establish?

(1) In truth, of course, The Ophelia establishes substantially less than it has – in this jurisdiction – recently been assumed to have established. In paragraph 18 above I quoted from Mr Rathfelder’s application, dated 5 November 1990, for review of the three decisions in issue. For convenience, I repeat that quotation here:

” …. we would rely on the principle established in the case of The Ophelia, 1916, that the documents which have been destroyed supported my client’s case.”

That encapsulates what I have termed the “mythology” which is building up round The Ophelia. Had the President or the Privy Council, or anyone else in judicial authority, enunciated that any document which had at any time been destroyed by A must, in litigation between A and B; be presumed to have supported B’s case, that would have been as preposterous an artificiality as had been propounded since the abolition of the rules of special pleading. No such presumption exists – or ever has existed – in English law. The absurdity of such a presumption was clearly recognised by no less an authority than Dr Lushington. (See the quotation from The Johanna Emilie set out in paragraph (6) of Appendix I. Dr Lushington himself uses the word “absurd”.) A little later in the passage quoted, Dr Lushington says: “I hold time to be of great importance.” And, of course, the President, in whose judgment the passage quoted appears, describes the passage as “a useful summary of the result of the cases”.

(2) It is possible that the mythology has stemmed from a misunderstanding of the meaning of the word “spoliation” in this context. Even in everyday English “spoliation” is not a synonym for simple destruction. I quote the opening words of the definition in the Shorter Oxford English Dictionary: “The action of spoliating; seizure of goods or property by violent means; depredation, robbery.” Similar pejorative overtones are borne in the phrase “spoliation of documents” and in the maxim: “Omnia praesumuntur contra spoliatorem”. That clearly appears from paragraphs (1) and (3) of Appendix II to this decision.

(3) I accept the submission of Mr McManus that in The Ophelia a clear distinction is drawn between –

(a) the deliberate destruction of documents with the intention of destroying evidence; and

(b) the deliberate destruction of documents where there is no such intention.

The distinction is implicit in the judgment of the President and in the extracts from other judgments which are quoted by him. It is explicit from the judgment in the Privy Council. To save cross-reference, I here quote words which appear in paragraph (10) of Appendix I:

“If any one by a deliberate act destroys a document which, according to what its contents may have been, would have told strongly either for or against him, the strongest possible presumption arises that if it had been produced it would have told against him; and even if the documents is destroyed by his own act, but under circumstances in which the intention to destroy evidence may fairly be considered rebutted, still he has to suffer. He is in the position that he is without the corroboration which might have been expected in his case.” (My emphasis)

So it is only in my case (a) above that adverse presumptions come into play. In case (b) the only detriment suffered by the destroying party is that he deprives himself of corroboration; and, nowadays, even that detriment will not necessarily afflict him: see paragraphs (4) and (5) of Appendix II as to the considerable erosion of the best evidence rule.

Is The Ophelia the source of a distinct rule in the law of evidence?

(1) Recently there has grown up in this jurisdiction a tendency to refer to “The Ophelia principle” in the manner in which lawyers refer, for example, to “the principle in Rylands v Fletcher”; in other words, to treat The Ophelia as a case of seminal importance. In my view, that is error. One has only to make the most cursory perusal of the two reports to see that neither the President nor the Privy Council had the slightest intention of enunciating – or did enunciate – any new principle of law. On the contrary, the President (in particular) was at pains to justify his approach by the citation and application of long-standing authorities. ‘In so far as any novelty was involved, it lay in setting the established rules of evidence – as applied in the Prize Court – into the framework of that Court’s “new” procedure (see, for example, paragraph (9) of Appendix I).

(2) I accept Mr McManus’ submission that, in essence, The Ophelia simply reflected the contemporary approach to evidence which prevailed throughout the courts of the land. That is, no doubt, why Mr McManus – despite extensive research – has been unable to find a single application of The Ophelia eo nomine. I myself have absolutely no experience of Admiralty proceedings, let alone of the prize jurisdiction. It may be that in prize cases which have not merited reporting there has been reference made to The Ophelia. But that, surely, would simply be because The Ophelia was itself set in the prize context and, in consequence, would furnish a convenient illustration of how the (in no way egregious) rules of evidence operate in the prize context.

(3) I briefly expand upon that. The so-called Ophelia principle is simply an application of the long-standing maxim “Omnia praesumuntur contra spoliatorem”. But the presumption must not be indiscriminately invoked. Commonsense is allowed to prevail. That is plain from paragraphs (1) and (2) of Appendix II and from the passage which I have emphasised in paragraph (7) of Appendix I. The “spoliation” in The Ophelia was of the most brazen nature. (As I commented in the course of the hearing, it was not all that far removed from the slavers who threw slaves overboard when a vessel of the Royal Navy’s West African anti-slaving squadron hove into sight.) It is clear from paragraph (3) of Appendix II that reliance on the “contra spoliatorem” maxim must be premised upon some wrongful or – at the least – reprehensible action or omission by the party against whom the resultant presumption is to operate.

Is The Ophelia simply an extension of the best evidence rule?

(1) In paragraph 31(3) above I said that the “Ophelia principle” was simply an application of the well recognised “contra spoliatorem” maxim. Mr McManus invited me to go further and to accept that the contra spoliatorem principle is itself a facet of the best evidence rule. Mr McManus made no secret of the intention underlying that invitation. The best evidence rule, although not yet quite dead, is on its deathbed. That is manifest from the passages set out by me in paragraphs (4) and (5) of Appendix II. The contra spoliatorem principle – urged McManus – must be regarded as having shared in the decline of the best evidence rule; and to be, in common with that rule, on the verge of extinction.

(2) Here I take leave to differ from Mr McManus. The development of English law has always been nourished by a pragmatism strongly infused with commonsense. There is danger in a too logical affiliation of one principle to another; and then projecting that affiliation to establish that the withering of the parent (or sibling) must import the withering of the offspring (or sibling). (The metaphor, of course, does not even hold good in the natural world.) Mr McManus relied on the following words from the long passage which I have in paragraph (5) of Appendix II quoted from the judgment of Lloyd LJ in the Osman case:

“What is meant by a party having a document available in his hands? We would say that it means a party who has the original of the document with him in court, or could have it in court without any difficulty. In such a case, if he refuses to produce the original and can give no reasonable explanation, the court would infer the worst. The copy should be excluded. If, in taking that view, we are cutting down still further what remains of the best evidence rule we are content.”

(3) Here – it seems to me – we are sliding away from the issue central to the discussion upon which I embarked in paragraph 27 above. Both Osman and Kajala v Noble (see paragraph (4) of Appendix II) were concerned with the admissibility of copies (i.e. of “secondary evidence”). In the Prize Court cases (including The Ophelia) and in the case now before me there was and is no argument as to the admissibility of copies; for they did not and do not exist. I prefer to keep the discussion disentangled from the best evidence rule. No one can doubt that, in this age of photocopies and faxes, the adjudicating authorities would look at copies of the documents surrounding the three decisions the subject of Mr Rathfelder’s application for review. (In the papers upon which the Commissioner regularly works photocopies are – I suspect – the rule rather than the exception.) But that is not the point here.

(4) My conclusion in respect of this section of the discussion is that – whatever may be the fate of the best evidence rule – the contra spoliatorem principle is, in its application to documents, alive and well. But, of course, that principle must be properly interpreted and applied in the light of the authorities. Mythology must be eschewed.

The Commissioner and The Ophelia

To the best of my knowledge The Ophelia was never referred to by the Commissioner until the second of the two decisions which the Commissioner gave in case on Commissioner’s file CSB/1288/1985. That case concerned supplementary benefit alleged to have been overpaid because of over-assessment of the claimant’s housing requirements. To be more precise: the question was whether he alone was responsible for the rent of his council house or whether that rent fell to be apportioned between him and his two non-dependent (but mentally retarded) children. Highly material on the issue of adequate disclosure were the relevant entries in a rent book which the claimant had produced to his local office prior to the first of the alleged overpayments of benefit. In his first decision the Commissioner set aside the appeal tribunal’s decision upon grounds which are of no present concern; but, in his directions to the fresh tribunal, he stressed the importance of examining the rent book itself. He did comment, however, upon the fact that the rent book was not in the papers which were before him. It then emerged that the original of the rent book had been sent to the appeal tribunal’s clerk along with the claimant’s application for leave to appeal to the Commissioner; that it was passed from there to the Office of the Chief Adjudication Officer; and that it could no longer be located. The case came back to the Commissioner for directions as to how in those circumstances the fresh appeal tribunal should proceed.
In a second decision the Commissioner dealt with that dilemma quite shortly. He opened paragraph 7 of his decision by quoting “Omnia praesumuntur contra spoliatorem”. He then launched straight into the passage (from the Privy Council’s judgment in The Ophelia) which I have set out in paragraph 30(3) above; but with a crucial omission. He concluded his quotation with the clause –

” …. and even if the document is destroyed by his own act, but under circumstances in which the intention to destroy evidence may fairly be considered rebutted, still he has to suffer.”

Of course, the manner in and extent to which the “innocent” destroyer “has to suffer” is immediately explained:

“He is in the position that he is without the corroboration which might have been expected in his case.”

And – as I observed in paragraph 30(3) – even that detriment may now be mitigated in consequence of the erosion of the best evidence rule.

Although it gives me no pleasure to say so, I fear that the Commissioner, in truncating the quotation, misdirected himself. He clearly concluded that “innocent” destruction brings upon the destroyed document “the strongest possible presumption that if it had been produced it would have told against him [i.e. the destroyer].” After giving the source of the quotation, he continued thus:

“That case concerned a ship claimed to be liable to capture as prize whose papers had been cast overboard in anticipation of capture, and the person destroying the documents was obviously a spoliator. But the closing words quoted show that it could apply equally to documents destroyed in the ordinary course by reason of the impracticality of retaining them for ever. [My emphasis] The present case is not one of destruction of documents at all but of loss of them. But I have formed the view that the same presumption arises in the case of the loss of evidence as the result of the breach of a duty to take care of them owed by one party to proceedings to another; see Coldman v Hill [1919] 1 KB 443 at pages 456-458). [And see, too, paragraph (3) of my Appendix II.] I am not of course making any finding that there has been any such breach of duty on the part of the Office of the Chief Adjudication Officer, but am merely indicating that the new tribunal may if they find there to have been such a breach rely on a presumption similar to that outlined in The Ophelia as applicable to the case of deliberate destruction.”

It will be seen from the foregoing that CSB/1288/1985 did not, in fact, bear directly upon the issue which presents itself to me. The Commissioner was canvassing the possibility that the Office of the Chief Adjudication Officer might, by losing the claimant’s rent book, be in the position of a “spoliator” (in the true sense of that word). On that aspect of the case the Commissioner was, in my respectful view, on sound ground; but this decision of mine is long enough already without my giving detailed consideration to issues peripheral to those directly before me – and I decline so to do. All that I here conclude about CSB/1288/1985 is that –

(a) the words which I have emphasised in my quotation in paragraph 35 above were, in the context of CSB/ 12 8 8/19 8 5, obiter dicta; and

(b) in my respectful view, those words are erroneous.

Since –

(i) The Ophelia is not mentioned in the current leading textbooks on the law of evidence, and

(ii) few claimants or their representatives are likely to have referred to the full reports of The Ophelia,

I strongly suspect that paragraph 7 of the second decision in CSB/1288/1985 is the fons et origo of the recent “mythology”.

Mr McManus also referred me to a very recent decision of a Commissioner (neither the author of CSB/1288/1985 nor myself). I quote paragraph 11 of CSB/282/1990:

“11. One hopes there will be no difficulty in obtaining any papers which it is sought to produce. However, if it transpires that they cannot be traced, the fresh tribunal may wish to consider whether it would be appropriate in the circumstances to apply the principle which the Privy Council applied in The Ophelia 1916 2 AC 206.”

To that passage – and, again, I speak with respect – no exception can possibly be taken. No reference is made to CSB/1288/1985. The Commissioner can be assumed to have ascertained for himself what is and is not laid down in The Ophelia; and, as I have been at pains to explain above, I regard The Ophelia, when properly understood, as still representing sound law.

Conclusions in respect of the missing documents

I set these out thus:

(a) None of the documents which are now “missing” was destroyed with any intention of destroying evidence.

(b) On the contrary, most – if not all – of such documents as would (if extant) bear upon the three decisions in respect of which review is sought were destroyed pursuant to routines prescribed in order to keep the storage of documents within manageable proportions.

(d) No reasonable person would have supposed that the documents with which this particular case is concerned would ever be required again.

(e) In consequence, no presumptions as to the contents of those documents fall to be made ( in either party’ s favour ).

(f) Secondary evidence – whether written or oral – is admissible as to what the original documents contained.

(g) Such secondary evidence falls to be evaluated upon the principles applicable to evidence in general.

How does the application for review stand in the light of the foregoing?

I have already made clear that Mr Rathfelder did not nail his colours to the mast of The Ophelia (see paragraph 18 above). His main line of approach can be summarised thus:

(a) By his decision dated 30 April 1990 the Commissioner set aside the appeal tribunal’s decision of 12 April 1988 (“the first tribunal decision”).

(b) The Commissioner specifically adverted to the judgment of the single judge (sitting in the Queen’s Bench Division) in the cases of Crake v The Supplementary Benefits Commission and Butterworth v The Supplementary Benefits Commission. (Those two appeals were heard together. Judgment was given on 22 July 1980. A report appears on pages 309-328 of ” Decisions of the Court relating to Supplementary Benefits and Family Income Supplements Legislation”.)

(c) The Commissioner criticised the first tribunal decision on the grounds that (inter alia) insufficient facts had been found to enable the criteria laid down in Crake and Butterworth to be properly applied.

(d) In the first tribunal decision the findings of fact entered upon the relevant form AT3 read:

“[The claimant] and the tribunal accepted the facts as set out on Form AT2. ”

(e) From that it must follow that the local adjudication officer, when giving his decision issued on 10 March 1987, had himself found insufficient facts to support his conclusion that the claimant and Mrs V were living together as husband and wife.

(f) Accordingly, the overwhelming inference must be that the Commission, the benefit officer and the adjudication officer must, respectively, have erred in fact and/or in law when they gave the decisions of 1978, 1983 and 1985.

By way of amplification, Mr Rathfelder urged these further points:

(a) Upon a full examination of the facts, the appeal tribunal which gave the decision dated 27 September 1990 (“the second tribunal decision”) found that the claimant and Mrs V were not living together as husband and wife.

(b) It is implicit in – perhaps explicit from – the submission made to the appeal tribunal by the local adjudication officer who gave the decision issued on 10 March 1987 that in the relationship between the claimant and Mrs V nothing significant had changed since the claimant had moved back in 1978.

(c) The claimant’s failure to appeal against any of – the three decisions can be explained on the basis that he had nothing with which he could usefully contrast those decisions.

(d) Entitlement to a review does not depend upon establishing that a revision would be the outcome. (Mr Rathfelder referred me to R(A) 2/90, which, in turn, referred to Saker v Secretary of State for Social Services – reported as an Appendix to R(I) 2/88.) Fresh matters calling for serious consideration suffice.

(e) The reported cases themselves show clearly that over a period of at least ten years the Commission, benefit officers and adjudication officers regularly adopted an inadequate approach to “living together” cases.

(f) In consequence of the foregoing, there is some evidence of what is likely to have been in the missing documents.

For his part, Mr McManus aired certain reservations as to the accuracy of some of the premises upon which were based the arguments of Mr Rathfelder which I have summarised in paragraph 39 above. But his main line of defence was more radical than that. When a review is sought under section 104 of the 1975 Act – urged Mr McManus – it is upon the party seeking the review that there rests the burden of establishing one or more of the grounds prescribed in that section. And in this context “establishing” means “establishing”. Certainly – conceded Mr McManus – the adjudicating authorities are entitled to draw inferences where such can be supported by the balance of probabilities. But from what in this case can any probabilities be identified? A proper understanding and application of the rules of evidence (including The Ophelia) inhibits the operation of any presumptions. That leaves us in a total vacuum. With such a dearth of factual information, speculation cannot be informed; it can amount to nothing more than guesswork. To put it another way: If the missing documents are to be reconstructed, where is the material for such reconstruction? This appeal to the Commissioner is against the decision given on 9 July 1991 (“the third tribunal decision”) and against no other decision. In essentials, the reasons set out in the third decision are sound and adequate.
There is undoubted attraction about Mr Rathfelder’s arguments. Upon reflection, however, I prefer those of Mr McManus. My own view has been influenced by the following considerations:

(a) I have been a Commissioner since 1980 and have, accordingly, had experience of a great number of “living together” cases. I have seen many such cases where the benefit/adjudication officer misjudged the scope and/or the effect of the facts to be ascertained and applied. But I have also seen many cases in which I did not consider that the benefit/adjudication officer had got it wrong. I see no grounds whatever for concluding that in this case it is more likely that the Commission/benefit officer/adjudication officer fell into error or mistake than that they did not.

(b) My experience has also taught me how unusually difficult of determination are the borderline “living together” cases. In the days when appeals to the Commissioner involved, as a matter of course, the rehearing of the evidence, “living together” cases were amongst the longest hearings which I held and presented me with the greatest difficulties in the drawing of inferences from the evidence. It has always been possible that, upon identical objective facts, one appeal tribunal (indeed, one Commissioner) will come to a different conclusion from another – without either falling into error of law. I have looked carefully at the evidence which was before the second appeal tribunal in this case. I am bound to say that if the second tribunal decision had gone the opposite way, it is by no means evident that that would have involved error of law. From this it follows that I am by no means persuaded that there was any vitiating mistake or error in any of the decisions in respect of which review is sought. We are, indeed, in a vacuum; and as in a true vacuum, no breath of wind inclines me one way rather than another.

To change the metaphor: the tree must remain lying where it fell so many years ago.

My conclusion, of course, renders otiose any consideration of the effect of the erstwhile regulation 72 of the Social Security (Adjudication) Regulations 1986.
This is so inordinately long a decision that I have thought it worth summarising, by way of Appendix III, my own conclusions in respect of The Ophelia. I am well aware that in the field of evidence Scots law is particularly likely to vary from English law. I have no expertise in Scots law. Accordingly, nothing which I have said in this decision about rules of evidence is intended to have any application to cases which are subject to Scots law.
The claimant’s appeal is, in form, allowed. That, in practice, has availed him nothing.

(Signed) J Mitchell
Commissioner

APPENDIX I

The Ophelia [1915] P 129 and [1916] 2 AC 206

(1) At first instance this case was heard in the Prize Court by the President of the Probate, Divorce and Admiralty Division (Sir Samuel Evans). The appeal went directly to the Privy Council. Their Lordships’ advice was delivered by Sir Arthur Channell.

(2) The “Ophelia” was a German steamship. On 18 October 1914, off the German/Dutch coast, she was boarded and taken as prize by men from HMS “Meteor”. The Imperial German Government claimed her release upon the ground that she had been operating as an auxiliary military hospital-ship. The British Crown contended that she had been operating as a signalling ship for military purposes.

(3) The facts of the case are summarised at pages 129-137 of the Probate report. Many further facts appear from the extraordinarily full report of counsel’s arguments – see pages 137-175. (No less than six counsel appeared.) To anyone with any interest in maritime affairs, the facts are certainly not boring to read. They are replete with such items as courses, soundings and distances run. (At page 169 the President intervenes: “Can you tell me whether these courses are true or magnetic?”) For present purposes, however, it will suffice to say that –

(a) various documents, including the signals log or logs were, at the time of seizure, thrown overboard or, a fortnight later, burnt by the “Ophelia’s” paymaster whilst the ship lay in the Thames; and

(b) even in the absence of those documents, there was abundant objective evidence that the “Ophelia” was manned and equipped for transmitting and receiving signals – and not as a hospital-ship.

The President condemned the “Ophelia” as lawful prize. He was upheld by the Privy Council.

(4) All this may seem some distance away from the law of social security in the final decade of the 20th century. In that context, however, such a bearing as the case may have lies in the law of evidence; and in the particular limb of that law relating to what is (a little archaically) referred to as “the spoliation of documents”. To that limb are confined my quotations. For ease of reference in the main body of my decision, I set out the quotations in numbered paragraphs of this Appendix. Where the quotation in one such paragraph follows, in the relevant report, immediately upon the words quoted in my preceding paragraph, I so indicate.

In the Prize Court: [1915] P.

(5) “This leads me to point out how seriously the Prize Courts have regarded the destruction of documents – usually described in the terminology of the Courts as ‘spoliation of documents’. The cases have usually dealt with the spoliation of documents like ship’s papers and documents relating to cargoes. Hospital-ships were little known in former days. But in my opinion the principles apply equally forcibly, to say the least, to documents which would throw light upon the way in which a ship purporting to be solely a hospital-ship had been employed.” (At page 180)

(6) “There is a useful summary of the result of the cases in the judgment of Dr Lushington in The Johanna Emilie (1854) 1 Spinks 317. I take the following passages:

‘I must say a word as to spoliation of papers generally …. I do not know that there is to be found in any of Lord Stowell’s judgments any direct definition of the word “spoliation”. I am of the opinion that the mere destruction of papers is not, under all circumstances, to be considered a spoliation; I say under all circumstances, because it (the principle) might be carried to a very absurd length. I apprehend it might be said, if at any time during a long voyage the master destroyed papers that had no relevancy to it, relating to a former voyage, the matter would not be put in issue. To say that was a spoliation of papers would be going the length of saying that nothing in the nature even of a private letter was to be destroyed after the vessel had left her port. I am not, however, disposed to relax the practical effect of the rules laid down by Lord Stowell, because they are consistent with good sense, and with justice to all parties; but they must not be pressed beyond his true intention with reference to all the facts of the case….

‘Now let me say a word on this, as to the time at which the papers are destroyed. I pray that my meaning may not be understood beyond the words I use. I hold time to be of great importance. If papers are destroyed when the capturing vessel is in sight, or there is a chance of capture, it is the strongest proof that these papers contain some matter which would inure to condemnation; so it is if they are destroyed at the time of capture, and if they are destroyed clandestinely after capture; but if the papers are destroyed a long time antecedently before there is any probability that they were destroyed for fraudulent purposes, then, though there is no spoliation. and though no doubt, the inference of law is against the act during war, yet the case is of a less stringent nature.”‘ (At pages 180-181. This follows directly upon the passage quoted in paragraph (5) above. The emphasis is mine in each instance.)

(7) “Upon this important subject I will also cite what Chancellor Kent says in his well-known Commentaries [“well-known” must be read in the context of 77 years ago]:

‘The concealment of papers material for the preservation of the neutral character justifies a capture, and carrying into port for adjudication, though it does not absolutely require a condemnation. It is good ground to refuse costs and damages on restitution, or to refuse further proof to relieve the obscurity of the case, where the cause laboured upon heavy doubts, and there was prima facie ground for condemnation independent of the concealment. The spoliation of papers is a still more aggravated and inflamed circumstance of suspicion. That fact may exclude further proof, and be sufficient to infer guilt; but it does not, in England, as it does by the maritime law of other countries. create an absolute presumption juris et de jure; and yet a case which escapes with such a brand upon it is saved so as by fire. The supreme Court of the United States has followed the less rigorous English rule. and held that the spoliation of papers was not, of itself, sufficient ground for condemnation, and that it was a circumstance open for explanation, for it may have arisen from accident, necessity, or superior force. If the explanation be not prompt and frank, or be weak and futile; if the cause labours under heavy suspicions, or there be a vehement presumption of bad faith, or gross prevarication, it is good cause for the denial of further proof; and the condemnation ensues from defects in the evidence, which the party is not permitted to supply.’

These are sound and salutary doctrines. In my judgment they are in a special sense applicable to ships claiming to be hospital-ships.” (At pages 181-182. This follows directly upon the passage quoted in paragraph (6) above. The emphasis is mine in each instance.)

In the Privy Council: [1916] 2 AC.

(8) “There seems, taking the evidence as a whole, the greatest uncertainty as to what books recording signals were really kept; but the one thing which is certain is that any which were kept, except the news log, were thrown overboard when it was seen that the vessel was about to be searched. If nothing but innocent signals had been sent, the signal log was the very book of all others which should have been preserved. The result, therefore, is that the appellant has nothing to show to vouch his story that all signals sent (including the one so unnecessarily, according to his account of its purport, sent in secret code) were of an innocent character. Further, the absence of such evidence, if any ever existed, is caused by his own act.” (At pages 228-229)

(9) “This leads to the subject of what is technically called spoliation of documents, on which the President, rightly, as their Lordships think, laid much stress. The authorities on the subject are carefully reviewed in his judgment, and these authorities and others were quoted on the appeal by the appellant’s counsel. In considering these authorities it is necessary to recollect that the procedure in the Prize Court has been very substantially altered by the new rules abolishing the preliminary hearing. The alterations in modes of doing business in modern times may have made this preliminary hearing not quite so useful as it was formerly, and some modification of procedure may have been desirable; but the total abolition of a preliminary hearing seems to their Lordships, as has been remarked during the argument of this and other cases before this Board recently, to operate occasionally against the interests of the Crown. Certainly the procedure in the present case has given an advantage to the claimant which he would not have had under the old procedure.” (At page 229. This follows directly upon the passage quoted in paragraph (8) above.)

(10) “In the cases as to spoliation of documents, the point has frequently arisen on the preliminary hearing on documents, and the question has been debated whether or not further proof should be allowed. This point cannot arise under the present procedure, and it may be that in some respects the old doctrine was rather technical. The substance of it, however, remains and is as forcible now as ever. and it is applicable not merely in prize cases, but to almost all kinds of disputes. If any one by a deliberate act destroys a document which, according to what its contents may have been, would have told strongly either for him or against him the strongest possible presumption arises that if it had been produced it would have told against him; and even if the document is destroyed by his own act, but under circumstances in which the intention to destroy evidence may fairly be considered rebutted, still he has to suffer. He is in the position that he is without the corroboration which might have been expected in his case.” (At pages 229 230. This follows directly upon the passage quoted in paragraph (9) above. The emphasis is mine.)

(11) “Their Lordships are of opinion that Captain Pfeiffer [the “Ophelia’s” commander] and the other witnesses have by their acts put themselves in such a position that their evidence cannot be relied on; that the evidence discloses facts of which no satisfactory explanations are or can be given; and that although on the Crown affidavit evidence some ambiguities have been pointed out which have not been cleared up by cross-examination or re-examination, yet there are incriminatory matters in those affidavits to which no answer has been given.” (At pages 230-231)
APPENDIX II

Other authorities on spoliation and the best evidence rule

(1) Broom’s Legal Maxims (10th Editn, 1939)

At page 637 is set out the maxim: Omnia praesumuntur contra spoliatorem. The pejorative overtones of “spoliatorem” are made clear by the translation which is offered: “Every presumption is made against a wrong-doer.”

“If the evidence alleged to be withheld is shown to be unattainable, the presumption contra spoliatorem ceases, and the inferior evidence is admissible.” (At page 640; and immediately followed by a quotation from Doe d. Gilbert v Ross, for which see below.)

(2) Doe d. Gilbert v Ross (1840) 7 M & W 102, 151 ER 696.

A vital deed (a marriage settlement) was in the hands of the defendant’s attorney. In response to a subpoena duces tecum, the attorney claimed that he held the deed not merely as attorney but by way of lien in respect of unpaid fees. That was ruled to be a proper objection to the subpoena; and the lessors of the plaintiff sought to give secondary evidence of the contents of the deed. The reported proceedings cannot be readily understood without a working acquaintance with the technical procedures which prevailed in civil actions in those days. (The final line of the report reads: “Rule absolute accordingly”.) But in giving the judgment of the Court of Exchequer, Parke B said this:

“Mr Baxter, when called upon a subpoena duces tecum, refused to produce the deed, and Lord Denman was of opinion that secondary evidence of its contents was then admissible, and in that opinion we entirely concur.

The rule on that subject is, that the law excludes such evidence of facts, as from the nature of the thing supposes still better evidence in the party’s possession or power; which rule is founded on a sort of presumption that there is something in the evidence withheld which makes against the party producing it. But if such evidence is strewn to be unattainable, the presumption ceases, and the inferior evidence is admissible. If therefore a deed be in the possession of the adverse party, and not produced, or lost and destroyed, no matter whether by the adverse party or not, secondary evidence is clearly admissible; and if the deed be in the possession of a third person, who is not by law compellable to produce it, and he refuses to do so, the result is the same, for the original is then unattainable by the party offering the secondary evidence.” (At page 704 of the English Reports. My emphasis.)

(3) Coldman v Hill [1919] 1 KB 443.

This case started in the County Court. Pursuant to the procedure in those days, it came to the Court of Appeal via the Divisional Court. Once again, the facts seem some distance away from the law of social security. A farmer accepted certain cattle for agistment. Some of them were stolen without his default. After learning that they were missing he made no effort, whether by informing the owner or the police, or otherwise, to recover them. It was doubtful whether any reasonable attempt on his part would have led to their recovery. Upholding the County Court judge and reversing the Divisional Court, the Court of Appeal found the farmer liable for the loss. In essence, the case turned upon the duties and burden of proof relevant to a bailment for reward. Since those duties and that burden touch but little upon whether a man and a woman are living together as husband and wife, I confine myself to two short paragraphs from the headnote for a summary of the Court of Appeal’s conclusions:

“An agister of cattle does not discharge himself of his duty as a bailee for reward by proving that they were stolen without his default, if by using reasonable diligence he could have recovered them.

If, having failed to use such diligence, he is sued for loss of the cattle, he must prove, in order to discharge himself, that such diligence would have been unavailing; it is not for the bailor to prove that it would have retrieved the loss.” (At page 443)

In the contra spoliatorem context, I quote from the end of the (authority packed) judgment of Scrutton LJ:

”The Court support this view by an unreported decision of the House of Lords in Morison v Walton, in which I was counsel. In that case the defendant was bailee of a boat which he undertook to tow across the Atlantic with a term in the contract that he should have a man on board. He broke his contract, and had no man on board. The boat was lost at night, and there was no evidence whether she was lost by gradual straining and leakage, or by a sudden and overwhelming wave. There was therefore no evidence whether the man, if on board, would have detected the leak and ordered the towing vessel to slacken speed, or whether he would have been destroyed by the overwhelming wave without being able to do anything. The House of Lords held that the man who had, in breaking his contract, destroyed the possibility of any evidence on the subject, could not be heard to say that there was no evidence that his breach of contract caused the loss. It was his duty as bailee to prove that his breach of duty did not cause the loss, not the plaintiff ‘s duty to show that he did. This appears to be merely an application of the principle omnia praesumuntur contra spoliatorem, under which a man who, having converted property, refuses to produce it that its exact value may be known, is liable for the greatest value that such an article could have: Armory v Delamirie ( 1722 ) 1 Stra. 505; Hammersmith Ry Co v Brand ( 1869 ) LR 4 HL 171. This decision appears to me exactly to cover this case, and to show that the county court judge in his accurate and careful judgment took the right view of the legal position.”(At pages 457-458)

(Armory v Delamirie – well known to law students – was, of course, the case where a goldsmith’ s apprentice wrongly extracted the gems from a jewel which a chimney-sweeper’ s boy had taken for a valuation. The boy won his action in trover – and the jury was directed to assess damages in the light of the finest water of gems which would fit into the empty sockets of the piece of jewellery. The Hammersmith Ry Co case concerned damage to real property by train vibration – and is of even less relevance to this decision than is Armory v Delamirie! )

(4) Kajala v Noble (1982) 75 Cr App R 149.

The defendant was charged with using threatening behaviour whereby …. etc. The alleged offence had taken place in a public street. The BBC had a film of the incident. When that film was shown on a television news programme, a viewer recognised the defendant. It was BBC policy not to allow originals of their films to leave their premises. The prosecution relied upon a video cassette recording, which the justices were satisfied was an authentic copy of the original. The defendant was convicted. He carried the matter to the Divisional Court by way of case stated, contending, inter alia, that the video cassette recording was not admissible evidence. Ackner LJ ( as he then was ), giving the judgment of the Court, dealt with that in emphatic terms:

“Mr Wiggs, who has argued this appeal on behalf of the defendant with skill and thoroughness, contended that since the original video film existed it should have been produced in court, and that the prosecution were not entitled to rely upon a copy, since this was secondary evidence, the production of which could not be justified in such circumstances.

We cannot agree. The old rule, that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded, has gone by the board long ago. The only remaining instance of it is that, if an original document is available in one’s hands, one must produce it; that one cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility: Garton v Hunter [1969] 1 AER 451, per Lord Denning MR at 453e …. In our judgment, the old rule is limited and confined to written documents in the strict sense of the term, and has no relevance to tapes or films.” (At page 152. My emphasis.)

(5) Reg v Governor of Pentonville Prison, Ex parte Osman [1990] 1 WLR 277.

This case attracted a substantial amount of public interest. It came before the Divisional Court as an application for a writ of habeas corpus. The applicant was wanted by the Hong Kong authorities to face charges concerning corrupt payments and unauthorised loans totalling over USS 800m. The Chief Metropolitan Stipendiary Magistrate committed the applicant in custody to await his return to Hong Kong (pursuant to section 7(5) of the Fugitive Offenders Act 1967). The Divisional Court hearing occupied 20 working days. About 50 cases are referred to in the judgment – and another 67 had been referred to in the arguments of counsel. Unsurprisingly, Lloyd LJ’s judgment (which went against the applicant) is of very substantial length. For present purposes, it will suffice if I quote briefly in the context of the best evidence rule – without explaining how it came into the picture:

“Mr Nicholls has three answers. First, he submits that the best evidence rule no longer exists ….

As to his first submission, this court would be more than happy to say goodbye to the best evidence rule. We accept that it served an important purpose in the days of parchment and quill pens. But since the invention of carbon paper and, still more. the photocopier and the telefascimile machine, that purpose has largely gone. Where there is an allegation of forgery the court will obviously attach little, if any, weight to anything other than the original; so also if the copy produced in court is illegible. But to maintain a general exclusionary rule for these limited purposes is, in our view, hardly justifiable. So we would, if we could, be happy to accept Mr Nicholls’ first submission.
But although the little loved best evidence rule has been dying for some time, the recent authorities suggest that it is still not quite dead. Thus in Kajala v Noble …. Ackner LJ said:

[There follows part of what I have quoted in paragraph (4) above: from “The old rule ….” to “…. by producing a copy”.]

In Reg v Wayte (1982) 76 Cr App R 110, 116, Beldam J said:

‘First, there are no degrees of secondary evidence. The mere fact that it is easy to construct a false document by photocopying techniques does not render the photocopy inadmissible. Moreover, it is now well established that any application of the best evidence rule is confined to cases in which it can be shown that the party has the original and could produce it but does not.’

What is meant by a party having a document available in his hands? We would say that it means a party who has the original of the document with him in court, or could have it in court without any difficulty. In such a case, if he refuses to produce the original and can give no reasonable explanation, the court would infer the worst. The copy should be excluded. If, in taking that view, we are cutting down still further what remains of the best evidence rule, we are content. On the facts, the magistrate was entitled to hold that the prosecution had given a reasonable explanation for the absence of such originals as they failed to produce.” (At page 308. My emphasis.)
APPENDIX III

Conclusions in respect of The Ophelia

(1) The Ophelia is still good law. It neither set out to – nor did – establish any new principles.

(2) The Ophelia was decided, at first instance, in the Prize Court. Unsurprisingly, therefore, the principles of law of evidence propounded therein are set against and derived from the prize jurisdiction. Those principles are, however, to be found in cases which were not decided in the Prize Court. It is probably for that reason that The Ophelia is not referred to in current textbooks on the law of evidence and is not cited in reported cases.

(3) The strong presumptions which are to be drawn against a party who destroys documents only fall to be drawn where the documents were destroyed with the intention to destroy evidence. (The intention to destroy evidence will, of course, be almost impossible to establish where the destroying party is aware of copies of the destroyed documents.) Where there is no such intention, the only detriment to which the destroying party lays himself open is the loss of the corroboration which the documents might have afforded him.

(4) Accordingly, in the social security jurisdiction no presumptions fall to be drawn where the Department of Social Security has destroyed documents with the intention of clearing storage space or simply because no point can be seen in retaining such documents.

Last updated 3/10/01

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