Post Office Counters Ltd v Mahida

Secondary evidence may be admissible where original documents have been lost. Its admissibility does not determine its weight. Where an institutional creditor is responsible for losing the primary evidence of a debt, and the debtor has sought details or a proper opportunity to check the figures, the resulting unfairness bears heavily on whether the precise debt has been proved.

Evidence may establish that substantial discrepancies occurred and support contractual termination, while remaining insufficient to prove the exact amount claimed. Statements made during an investigative interview must be assessed in context and do not necessarily admit liability for precise sums.

The Post Office claimed £4,341.83 plus interest from a former sub-postmistress under a contract for services. The claim concerned three relatively small accounting items and alleged discrepancies in social security benefit payments. The defendant denied liability and counterclaimed for breach of contract.

After a substantial delay, the High Wycombe County Court, sitting in Staines, found the claim proved and dismissed the counterclaim. The original dockets, foils, add lists and claim forms had been destroyed or could not be located. The appeal concerned whether the loss had been adequately proved and whether a fair trial remained possible using secondary evidence.

1. Appeal allowed. The order below was set aside. Liability for the three smaller items was upheld, but the claim relating to the Department of Social Security payments was not proved.
2. Secondary evidence of the missing documents was admissible. The power under Civil Procedure Rules rule 31.1(2) to exclude admissible evidence was principally a case-management power. Excluding the evidence would have been a strong step because it could effectively shut out both the claim and much of the defence to the counterclaim. The judge was not plainly wrong to admit it.
3. Nevertheless, the loss of the originals created substantial unfairness. The defendant had requested details and had not been given a real and sensible opportunity to examine the original documents. The Post Office also failed to respond promptly to the request for further particulars and failed to preserve the primary evidence on which its claim depended. Those matters went to the weight of the secondary evidence. The fair-trial and equal-footing concerns under the European Convention on Human Rights formed part of that assessment.
4. The court distinguished between proving that overclaims had occurred over a considerable period and proving the precise amount of a money debt. The secondary evidence could support a finding of substantial overclaims sufficient to justify termination of the contract and dismissal of the counterclaim. It could not establish the exact Department of Social Security liability where the claimant had lost the primary evidence and denied the defendant a proper opportunity to check the figures.
5. The statements made at the October 1994 interview were not admissions that the precise sums claimed were owing. Their context was an investigation into alleged discrepancies and a possible pattern of misconduct. The judge therefore erred in treating them as sufficient proof of the Department of Social Security item. Lord Justice Kay agreed with Lady Justice Hale.

1. Court of Appeal (Civil Division): Appeal from the order of His Honour Judge Parry made on 31 October 2002. Appeal allowed; the order was set aside and a substituted order was made for the three smaller items. [2003] EWCA Civ 1583.
2. High Wycombe County Court sitting in Staines: Judgment for the Post Office for £4,341.83 plus interest; the defendant’s counterclaim was dismissed.