Case: Gray v Haig [1855] EngR 469 ; (1855) 20 Beav 219
Outcome: referred to
for the applicants stated that the applicants proposed to invite the Court to draw an inference or inferences against the respondent from various facts including that: (1) emails were deleted; (2) the contents of a laptop computer used by Ms Allen were erased; (3) not all Channel Reports have been made available; and (4) the backup TL drive files were not retained. In support of this submission, the applicants referred to the following three authorities: Gray v Haig [1855] EngR 469 ; (1855) 20 Beav 219 ; The Ophelia [1916] 2 AC 206 ; and Allen v Tobias [1958] HCA 13 ; (1958) 98 CLR 367. The material fact was, so the applicants said, the destruction of documents. If they were to plead the inferences to be drawn from this destruction, then, so they said, they would be pleading impermissibly matters of evidence. The applicants' case was that it was the fact of destruction by the respondent that was sufficient and necessary for their pleading. Gray v Haig [1855] EngR 469 ; (1855) 20 Beav 219 concerned one Mr Gray, who was the agent for Haig &amp; Son, selling whisky on commission. When his agency ended, a dispute arose as to the amount of the commission due and an account was ordered. However, after the dispute arose, Gray destroyed the books, on which the taking of the account depended. The Master of the Rolls held, at 226, that: In a case before me this year, one partner, several years before the institution of the suit, and upwards of twenty years after the closing of the partnership business, and when the accounts had been settled between him and his partners by arbitration, and never afterwards opened or disputed, had destroyed the books which contained the accounts of that partnership, I treated lightly the circumstance of that destruction, and did not suffer it to prejudice his case. But the case is very different when the transactions to which they relate are recent, where the accounts arising from them have not been finally adjusted, or the balance ascertained or paid, and still more when that destruction takes place by the person who has actually filed a bill to have the accounts taken of those very transactions to which these books relate. In such a case some very cogent reason must be given to satisfy the Court that the destruction was proper or justifiable, and, in the absence of any such satisfactory reason, which is the fact here, I am compelled to act on the principle laid down in the well-known case of Armory v Delamirie (1 Strange, 505), and presume, as against the person who destroyed the evidence, everything most unfavourable to him, which is consistent with the rest of the facts, which are either admitted or proved. Counsel for the applicants stated that this was the applicants' "inspiration for [their] plea". The passage makes it clear, however, that the principle that was under discussion was essentially an evidentiary principle, the application of which depended on the particular circumstances of the case. These circumstances included that the documents in question were essential to the taking of the account and destroyed by the very person who sought the relief at a time when the account was yet to be taken. The destruction of the documents in this circumstance was reprehensible and not merely mistaken.