CIVIL PROCEDURE BACK TO BASICS 40: HOW CIVIL JUDGES DECIDE CASES

In Knight & Anor v Knight & Ors [2019] EWHC 915 (Ch) HHJ Matthews (sitting as a High Court Judge) set out a summary of how civil judges decide cases. It is a useful reminder to all of those involved in litigation in relation to the tasks involved.

dECISIONS

THE CASE

The judge was deciding whether property belonged to the estate of the deceased. This involved the consideration of matters going back as 1976.

THE GUIDANCE THE JUDGE GAVE TO THE LITIGANTS

How civil judges decide
    1. The present case is one in which there is an acute conflict of evidence as to what happened at various times and in particular in certain meetings, indeed, whether some meetings took place at all. That conflict has raised great emotions which were quite visible in court during the trial. It is important therefore that the parties (who are not lawyers) understand how I am going to proceed to resolve these questions.
    2. In order to do this, I will quote the following passage from a recent judgment of mine in a case called Dobson v Griffey [2018] EWHC 1117 (Ch):
“26. I must shortly consider the evidence adduced in this case in support of the parties’ respective cases. However, before I do so, I will say something shortly about how judges in civil cases decide cases of this kind. The lawyers involved will know all this. But the parties themselves may not. First of all, an obvious point. Judges are not superhuman, and do not possess supernatural powers. They listen to the evidence and other materials presented to them and the arguments made, and then make up their minds. However, they decide according to certain important procedural rules. I will mention three of them here.
27. The first is the burden of proof. Where there is an issue in dispute between the parties in a civil case, one party or the other will bear the burden of proving it. As a general rule in English law, the person who asserts something has to prove it: Robins v National Trust Co Ltd [1927] AC 515, 520. On most of the issues in this case, they are alleged by the claimant. So she bears the burden of proving them. The significance of who bears the burden of proof in civil litigation is this. If the person who bears the burden of proof of a particular matter satisfies the court, after considering the material that has been placed before the court, that something happened, then, for the purposes of deciding the case, it did happen. But if that person does not so satisfy the court, then it did not happen. The system of fact-finding is binary. It is either one thing or the other. There is no room for maybe: see Re B (Children) [2009] 1 AC 11, [2], per Lord Hoffmann.
28. However, a judge will consider the evidence first, and only resort to the burden of proof where he or she is unable to resolve an issue of fact or facts after having unsuccessfully attempted to do so by examination and evaluation of the evidence. In such a case, there is nothing left but to conclude that the claimant has not proved his or her case: Verlander v Devon Waste Management & Anr [2007] EWCA Civ 835, [19], [24].
29. Secondly, the standard of proof in a civil case differs significantly from that in a criminal case. In a civil case it is the balance of probabilities. This means that, if the judge considers that a thing is more likely to have happened than not, then for the purposes of the decision it did happen. If on the other hand the judge considers that the likelihood of a thing’s having happened does not exceed 50%, then for the purposes of the decision it did not happen. It is not necessary for the court to go further than this.
30. Thirdly, a court must give reasons for its decisions: Bassano v Battista [2007] EWCA Civ 370. That is the primary purpose of this written judgment. But the judge’s reasons must be read on the assumption that the judge knew how to perform the judicial functions and the matters which had to be taken into account: Piglowska v Piglowska [1999] 1 WLR 1360, 1372. And, although judges must take into consideration all the evidence presented and weigh all the arguments made, they are not obliged to deal in their judgments with every single point that is argued, or every piece of evidence tendered: Weymont v Place [2015] EWCA Civ 289, [6]. Moreover, it must be borne in mind that specific findings of fact by a judge are inherently an incomplete statement of the impression which was made upon that judge by the primary evidence. Expressed findings are always surrounded by a penumbra of imprecision which may still play an important part in the judge’s overall evaluation: Biogen Inc v Medeva plc [1997] RPC 1, 45. What follows must be read in that light.”
    1. So decisions made by civil judges are not necessarily the objective truth of the matter. Instead, they are the judge’s assessment of the most likely facts based on the materials which the parties have chosen to place before the court. And, whilst judges give their reasons for their decisions, they cannot and do not explain every little detail or respond to every point made.
    2. I should also refer to the comment by an experienced commercial judge, Leggatt J (as he then was), on the question of the unreliability of memory, in Gestmin SGPS SPA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), [16]-[20]. There he makes various comments about modern research into the nature of memory and the unreliability of eyewitness evidence. Then he continues, at [22]:
“In the light of these considerations [about the unreliability of memory], the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”
  1. This is not a commercial case, but the events which are its subject took place over the last 25 years. Even good memories will have faded over that time. There are a number of events (especially conversations and meetings) which have to be the subject of fact-finding and then analysis. Some of them have no witness able to give first-hand evidence. So it seems appropriate to adopt in this case the same approach as Leggatt J suggested for his. However, the judge in that case made clear that the court was entitled, in considering the documentary material, to have regard to the impressions made by the witnesses in cross-examination. Even if documents point one way, to a particular conclusion, the court may still take the view that that conclusion is either more or less likely to be correct in light of the assessment of the witnesses who have given live evidence. As in many non-commercial cases, the documents are by no means the whole of the story.