PROVING THINGS 43: HOW THE COURT DECIDES: A PRIMER
The judgment of Master Matthews in Adepoju -v- Akinola  EWHC 3160 (Ch) includes a useful primer on how the court goes about the task of deciding civil cases.
“…the decision of the court is not necessarily the objective truth of the matters in issue. Instead it is the most likely view of what happened, based on the material that the parties have chosen to put before the court, taking into account to some extent also what the court considers that they should have been able to put before the court but chose not to”
The action was a probate claim relating to whether the defendant was lawfully married to the claimant’s mother. The claimant’s case was (a) the defendant and her mother had never lawfully been married; (b) any marriage that took place was polygamous, the defendant having never divorced his previous wife.
HOW THE COURT DECIDES
For the benefit of the parties, rather than the lawyers, the Master set out in summary form the approach of the courts to matters of evidence and the burden of proof.
“How the court decides
There are three general points about the way that English civil courts reach their decisions which I should make at this early stage. The lawyers in the case undoubtedly know them, but their clients may not. They are subject to a qualification which I shall mention after making them. The first is that, in our system, it is for the parties to seek out and place before the court the material which they consider will assist the court and promote their case. It is not for the court to investigate of its own motion. Other relevant material may possibly exist somewhere else, but it is not the duty of the court to look for it. In general terms, the court makes a decision only on the material put before it by the parties.
The second point is that, in English civil procedure law, one party or the other bears the burden of proving any particular matter in issue between them. If the person bearing that burden satisfies the finder of fact (judge or jury), after considering the material before the court, that on the balance of probabilities a thing happened, then, for the purposes of deciding the case, it did happen. If that person does not so satisfy the fact finder, then that thing did not happen. The system is binary, and the judge decides on the basis of the burden of proof. There is thus no room for maybe: see Re B (Children)  1 AC 11, , per Lord Hoffmann.
The third point is that, where a party could give or call relevant evidence on an important point without apparent difficulty, a failure to do so may in some circumstances entitle the Court to draw an inference adverse to that party, sufficient to strengthen evidence adduced by the other party or weaken evidence given by the party so failing: see Wisniewski v Central Manchester Health Authority  PIQR 324, CA; Jaffray v Society of Lloyds  EWCA Civ 1101, -; Thames Valley Housing Association v Elegant Homes (Guernsey) Ltd  EWHC 1288 (Ch), .
Added together, these points mean that the decision of the court is not necessarily the objective truth of the matters in issue. Instead it is the most likely view of what happened, based on the material that the parties have chosen to put before the court, taking into account to some extent also what the court considers that they should have been able to put before the court but chose not to. The conclusions to which I have come below must be seen in that light.
The qualification which I mentioned above is this. Probate claims, of which this is one, at least in part, are not merely claims as between one party and another, without impact on third parties. On the contrary, probate claims are to some extent claims in rem, that also have an impact on others. The court therefore approaches the finding of fact in the ways that I have set out above, but keeps an eye on the need to avoid prejudice to third parties by deciding only between two competing versions of what happened. This feeds into the discussion at the end of the judgment on remedies. Accordingly I shall come back to the matter then.”
THE OUTCOME OF THE CASE
The Master had a difficult task in that he found that both witnesses were not satisfactory. However he found that:
- A marriage ceremony had taken place between the defendant and the claimant’s mother.
- However the defendant had not established that he had been divorced at the time the marriage took place.
The absence of evidence was an important factor. The defendant did not adduce any evidence from his “ex-wife” to establish that they were divorced. This played a major part in the Master’s conclusion that the defendant had not established that he was divorced
He went on to find that neither the claimant nor the defendant Letters of Administration. Because of the factual findings he had made it was necessary for another person to be the administrator.
THE “ABSENT WITNESS” AND CIVIL EVIDENCE
- Civil evidence: absent doctor does not lead to an adverse inference.
- When a key witness is not called – the inferences a court will draw.
- More on adverse inferences from absent witnesses: a clinical negligence case.
- Durrant case back in the reports: what presumptions should a judge draw when a party is debarred from calling witnesses
- The Local Government Lawyer “Silence is not necessarily golden”.
- Gordon Ramsay and witness evidence: absence of key witnesses does not lead to turning up of the heat
- Inferences to be drawn from silence: the views of the Supreme Court
- Absent witnesses are not necessarily decisive: Western Trading considered
THE PROVING THINGS SERIES
- Proving things 1: Civil Evidence Act notices will not cut it
- Proving things 2: evidence to support a claim for damages must be pitch perfect.
- Proving things 3: the complete absence of evidence means the court will not speculate
- Proving things 4: Witnesses who just aren’t there.
- Proving things 5: witness statements and failing on causation.
- Proving things 6: “That’s what I always do” & proving causation.
- Proving things 7: If you don’t prove a loss you don’t get an order.
- Proving things 8: a defendant must prove that a failure to wear a seatbelt made a difference.
- Proving things 9: the role of experts
- Proving things 10: “He said, she said”: the difficulties of recollection.
- Proving things 11: Lies, damn lies and…
- Proving things 12: That oral contract is not worth the paper its written on.
- Proving things 13: Loss, there was no loss.
- Proving things 14: proving mitigation of loss
- Proving things 15: damages and evidence: going back to College
- Proving things 16: if you don’t prove it you don’t get it.
- Proving things 17: Heads of damage that were “entirely bogus”
- Proving things 18: Damages; Car hire; Proof & Summary Judgment
- Proving things 19: prove service or you could be caught out.
- Proving things 20: allegations of improper conduct have to be prove
- Proving things 21: when the whole process of investigation is flawed
- Proving things 22: damages, mitigation part 36 (and bundles).
- Proving things 23: serving important evidence late
- Proving things 24: Damages & the “But for test”: when it gets really complexProving things 24: Damages & the “But for test”: when it gets really complex
- Proving things 25: Attempts to smuggle in witness statements do not help (and carry no weight).
- Proving things 26: distinguishing between what you can remember and what you now think you did.
- Proving things 27: Burdens of proof, hearsay evidence and… attempted murder.
- Proving things 28: make unwarranted personal attacks and use a “mud-slinging” expert: that always ends well.
- Proving things 29: Make sure the witness evidence deals with the relevant issues
- Proving things 30: Office Gossip Proves Nothing: The importance of the source of information and belief.
- Proving things 31: witnesses tend to remember what they want to remember.
- Proving things 32: Damages claim struck out as unsustainable: application to amend refused.
- Proving things 33: causation and the burden of proof in claims against solicitors.
- Proving things 34: There is no primer for scuttlers: when your ship doesn’t come in.
- Proving things 35: Reconstruction, documents & memory.
- Proving things 36: credibility and contemporaneous documents.
- Proving things 37: An approach to damages that was “fundamentally deficient throughout”.
- Proving things 38: Proving inability to pay on a security for costs application.
- Proving things 39: You can spend £10 million in costs and still not prove your case.
- Proving things 40: No evidence – no loss.
- Proving things 41: Proving damages – you are not going to get a second bite of the cherry.
- Proving things 42: silence does not prove inducement.