My respected ex-colleague here, who rather more successfully represented Mallinson, says "I am the man who almost single handed sank the Ophelia, a vessel on which many of my colleagues had pinned their hopes"
Commissioner Mitchell wrote about Martin's argument (not his main point) that:
" " .... 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. "
You can read the full, lengthy, decision R(IS)11/92 (CIS/620/1991)at:
http://homepage.ntlworld.com/ma.rathfelder/Ophelia.htm
or on our CD-Rom.
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