In Baxter v Barnes [2015] EWHC 54 (QB) Judge Collender QC helpfully summarises the position regarding destruction of evidence by a party. The leading authority on the point is that in Malhotra v Dhawan [1997] EWCA Civ 1096 which draws a distinction between deliberate destruction of evidence to hinder a claim which will carry a significant inferred impact on the destroyer’s credibility. Also suggesting that if there is doubt then it is legitimate to resolve this against the destroyer but the court is not bound to do so if the judge forms a clear view of the truth of the matter and cannot compel a judge to accept incredible evidence.
Malhotra was a case concerning innocent destruction, however, Baxter was argued by the claimant that as the defendant had been served with a letter before action that the defendant should have preserved the device at the heart of the dispute. This contention was not accepted as the court considered that it had enough evidence to decide the case properly; further that there was no requirement for a presumption or inference against the defendant or his credibility