Hello - I recently had a case where someone failed their PCA. During the appeal process all the paperwork was lost by the DWP meaning the case automatically defaulted in the clients favour. Does anyone know where I can find any written procedures or ruling for this scenario. Thank you.

Oh dear! This has all the hallmarks of Martin Rathfelder and The Ophelia.

When you say "the case automatically defaulted in the clients favour", is that a response from the DWP or your belief?

All what paperwork anyway? Presumably there is a record of the most recent PCA outcome: was there and have they lsot the IB50 as well?

If there have been previous medicals (whose outcome has been lost - happens all the time!) , then the only circumstance in which they are genuinely relevant to the current appeal is if the appellant says, plausibly, that his condition hasn't changed since the last time they found him incapable of work. You then argue that the DWP hasn't discharged the burden of showing that there has been a cahnge of circumstances warranting withdrawing his benefit. This isn't a lot of help if any part of his medical condition has changed (you do see people who originally got IB for a broken leg and 10 years on are still getting it but now they have diabetes, high blood pressure and a frozen shoulder: the old papers will tell you nothing in such cases), or if for example his GP thinks he is a lot better, which happens. It all still needs arguing.

The Ophelia was a civil law court case in which some important documents in the possession of one of the parties, which could have been very helpful to the other, disappeared in highly mysterious an suspicious circumstances, suggestive of them having been destroyed on purpose, after it had become likely that there would be litigation. The case is an important warning for parties to a dispute which hasn't reached the litigation stage that they must take great care of all potentially relevant documents. Solicitors acting for such parties have to ram it home very forcibly sometimes. It is not generally relevant to the Department managing to lose papers it wouldn't necessarily have known were going to be needed again in five years' time through simple incompetence. It's almost more surprising that they do fairly often manage to find reports of previous PCAs, sometimes from many years before!

Hello There, thanks for your reply, yes - this was the response from the DWP, my client now has his incap backdated and there is no problem with this case. However, I have been asked by another person if there is a commissioners decision regarding this and would be grateful if anyone could point me in the right direction. I will look into Martin Rathfelder and the Ophelia. Thanks for your help.

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.

thank you very much for your help - much appreciated.