The judgment of Mr Justice Birss in Emmanuel v Avison & Ors [2020] EWHC 1696 (Ch) contains some interesting observations about the burden of proof.  The burden lay with the claimant, despite the fact that if different proceedings had been instituted the burden would have been on the defendants.  Where a judge makes a finding on the burden of proof this difference can have major consequences.

“However considerations of this kind are the reason why the courts strive to avoid deciding cases in this way; they are not a justification for a different approach to the onus of proof.”


The claimant brought an action seeking a declaration that she had not signed a charge document over property she owned.   The trial judge was unable to determine which evidence should preferred and decided the case on the burden of proof.  It was held that the burden of proof lay on the claimant and, accordingly, the action failed.


There were a number of grounds of appeal.  One of them concerned the burden of proof.  Birss J rejected all the grounds of appeal. In relation to the burden of proof argument he held that the burden remained on the claimant.

    1. Counsel for Ms Emmanuel submits that these authorities show that the common law rule is that the party who seeks to rely on a document must prove the document and that this extends to proving that the document is not forged. The appellant then submits that the common law rule, as it applies to this case, has not been altered by statutory provisions on evidence, such as section 3 of the Evidence Act 1938. The submission about the Evidence Act is not disputed.
    2. By contrast counsel for Mr and Mrs Avison submitted that the common law provides that it is for Ms Emmanuel to prove that the relevant document is forged. They rely upon Saunders. In that case, Mrs Gallie signed a document which she was told was a deed of gift of her house to her nephew. In fact, the document was an assignment of her house to a third party who proceeded to mortgage the house. Mrs Gallie proceeded against the mortgagees and the third party, asking, on the basis that the deed was non est factum, for a declaration that the assignment was void and that the title deeds should be delivered to her. The House of Lords found for the defendants and, while it was not expressly discussed, proceeded on the basis that Mrs Gallie bore the burden of proving that the deed was non est factum. This, the respondents say, is directly analogous to this case. Ms Emmanuel seeks to distinguish Saunders on the basis that, in Saunders, Mrs Gallie had signed the document and admitted the existence of the deed while, in this case, the appellant alleges that she did not sign and requires the respondents to prove the documents.
Burden of proof – assessment
  1. The legal rule is, as counsel for Ms Emmanuel submits, that where a given allegation, whether affirmative or negative, forms an essential part of a party’s case, the proof of such allegations rests on them. However in my judgment the proper application of that rule in this case does not help Ms Emmanuel. Putting it another way, there is nothing about the facts of the present case which means that the general principle that they who assert must prove does not apply in its simplest way. Ms Emmanuel has brought this claim. In it she is asserting that her signatures on the documents are forgeries, and that she was not indebted to Mr and Mrs Avison. Ms Emmanuel seeks declarations to that effect and an order to alter the register accordingly. Prima facie, the burden of proving those facts is on her.
  2. I agree with counsel for Ms Emmanuel that if instead Mr and Mrs Avison had sued Ms Emmanuel to enforce the loan agreement then they would have to assert, as part of that claim, that it had been entered into by Ms Emmanuel and, assuming the assertion was denied or not admitted, the burden of proof would lie on them. However I do not agree that point provides the answer to the problem in this case. Part of the argument on Ms Emmanuel’s behalf was that it cannot matter who is the claimant or the defendant. I do not accept that. The reason why not is that one function of the burden of proof is to operate as a rule of law which determines the outcome of a claim in certain circumstances. A claim is a claim for relief.
  3. I recognise that in a case like this, one may end up with the unsatisfactory result that Ms Emmanuel cannot prove she did not enter into the loan, but neither could Mr and Mrs Avison prove that she did. Moreover it would mean that Mr and Mrs Avison have the benefit of a legal charge which, on this assumption, they cannot prove Ms Emmanuel accepted. However considerations of this kind are the reason why the courts strive to avoid deciding cases in this way; they are not a justification for a different approach to the onus of proof.
  4. Therefore the judge was right to find that the burden of proof lay with Ms Emmanuel on conventional principles. A further point taken by the appellant is that a r32.19 notice to prove documents was served on her behalf. I was not addressed on it in detail. If, as I have found, Ms Emmanuel bore the legal onus of proof to show that the documents were forgeries, I do not see how serving such a notice on the defendants in this case could operate to shift that legal burden onto them. Therefore I dismiss this ground of appeal. It is not necessary to consider the submissions about the effect of the LRA 2002.