The consequences of the destruction or suppression of evidence

The integrity of legal proceedings relies on the availability of all relevant evidence to ensure a just outcome. When a litigant, or their agent, engages in conduct that undermines this integrity – such as destroying or suppressing evidence – serious consequences may follow.

Courts have long recognised that such conduct can give rise to adverse inferences, damage credibility, and, in some cases, amount to criminal conduct.

Adverse inferences against the litigant

If a litigant acts in a manner that suggests a lack of confidence in their own case, this can lead to an inference that they lack the essential evidence to support their case.

Examples of conduct that may give rise to such inferences include:

• destruction or failure to produce relevant documents, particularly where those documents could be incriminating;
• subornation of a witness or fabrication of evidence, which directly undermines the evidentiary process; and
• false statements or deliberate evasion, including claims of an inability to recollect key events, which, when viewed in the broader evidentiary context, may suggest a consciousness of liability.

Assessing the consciousness demonstrated by the conduct

The nature of the inference to be drawn depends on the level of consciousness exhibited by the litigant in their conduct.

Different types of conduct may suggest varying degrees of concern about the strength of the case:

• broad attempts to obstruct justice, such as bribery, witness tampering, or widespread destruction of evidence, may indicate that the litigant is aware that their overall case is weak; and
• more specific actions, such as failing to produce a particular document or preventing a particular witness from testifying, may suggest that the litigant is concealing a vulnerability in a specific aspect of their case.

Wider legal and reputational consequences

Beyond the immediate impact on the case at hand, the destruction or suppression of evidence can have wider ramifications:

• criminal liability – in some jurisdictions, destruction of evidence constitutes a criminal offence (eg., perverting the course of justice);
  
  
• civil penalties – Courts may impose sanctions such as adverse costs orders or strike out claims or defences tainted by misconduct; and
  
  
• reputational damage – a finding that a litigant engaged in evidentiary misconduct can have long-term consequences for individuals and corporations alike.

Ultimately, Courts take a dim view of attempts to interfere with the proper administration of justice. Whether through adverse inferences, procedural penalties, or criminal sanctions, the consequences of destroying or suppressing evidence can be severe. Litigants must recognise that any such conduct may not only weaken their case but also attract significant legal and reputational repercussions.