In Daley -v- Bakiyev  EWHC 1972 (QB) Mr Justice Supperstone dealt with issues relating to the burden of proof where there very serious allegations. The fact that a central witness for the claimant did not attend court, and his evidence was adduced as hearsay, played an important part in the decision.
The claimant had been shot in 2006. He alleged that the defendant had organised and arranged the shooting.
THE BURDEN OF PROOF
The judgment contains a succinct summary of the relevant legal principles relating to the standard of proof, the burden of proof and evidence.
“Relevant Legal Principles
Standard of Proof
Lord Nicholls, in a well-known passage in his speech in In Re H and Others (Minors) (sexual abuse: standard of proof)  AC 563 at 586, stated:
“Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability…
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. …
… this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in In Re Dellow’s Will Trusts 1 WLR 451, 455: ‘The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it’.”
“(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
(2) Regard may be had, in particular, to the following—
(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contempor-aneously with the occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.”
In Welsh v Stokes  1 WLR 1224 at para 23 Lord Dyson MR stated:
“The decision what weight (if any) to give to hearsay evidence involves an exercise of judgment. The court has to reach a conclusion as to its reliability as best it can on all the available material. Where a case depends entirely on hearsay evidence, the court will be particularly careful before concluding that it can be given any weight. But there is no rule of law which prohibits a court from giving weight to hearsay evidence merely because it is uncorroborated and cannot be tested or contradicted by the opposing party.”
In Breslin v McKevitt  NICA 33 the Court of Appeal in Northern Ireland (Higgins, Girvan and Coughlin LJJ) observed:
“It should be borne in mind that no evidence can be properly weighed in a vacuum divorced from the totality of its evidential context. Apparently weak evidence may gain strength or indeed considerable strength when considered in the light of other evidence.”
Weighing Evidence and Drawing Inferences
Where fraud is alleged, the Privy Council in Central Bank of Ecuador v Conticorp SA  UKPC 11 recently endorsed the approach of Robert Goff LJ in The “Ocean Frost”  1 Lloyds Rep. 1 at 56-57, where he said:
“I found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witness’s motives and to the overall probabilities can be a very great assistance to a judge in ascertaining the truth.”
(See also observations of Sedley LJ in Anya v University of Oxford  ICR 847 at para 14 in respect of inferences to be drawn from primary findings of fact in the discrimination context).”
THE FINDING IN THIS PARTICULAR CASE
The claimant’s main witness, who alleged that the defendant had “confessed” to him did not attend court, despite being summonsed.
i) The reason Mr Sin Beti says the Defendant gave for wanting to kill the Claimant was that
“[The Claimant] had appealed to (Kyrgyz) Parliament and solved the Dzheruy issue in favour of OKSUS,” (para 83 above).
The Claimant had not “solved” the Jerooy issue in Oxus Gold’s favour. On 23 May 2006 the Government had decreed that approval be given to a draft Joint Activity Agreement between Kyrgyzaltyn and Global Gold (para 22 above); on 12 June 2006 the Government responded to the Kenesh decree of 29 May 2006 requesting that it be withdrawn (para 24 above); and on 5 July 2006 the Jerooyaltyn Joint Venture was registered in the Ministry of Justice of the Kyrgyz Republic (para 25 above) (which led inevitably to the issue of the licence to Global Gold on 19 July). As the Claimant accepted it appeared from the documents that Global Gold had “landed their prize” before the shooting (para 62 above).
ii) I do not consider it credible that the Defendant would have told Mr Sin Beti that he had arranged to have the Claimant murdered and that his brother and uncle were the ones who fired the shots, even if Mr Sin Beti was on “friendly relations” with the Defendant as he alleges (which is denied by the Defendant).
iii) It is not credible that such a conversation would have taken place on 12 July, five days after the shooting. If the Defendant had ordered the shooting he would have known that the Claimant had survived long before 12 July. He would also have known of the security that had been put in place to protect the Claimant at the hospital a few days after the shooting. The adoption of the date of 12 July which does not appear in the transcript of the Kyrgyz hearing (see para 85 above) may, as Mr McCullough suggests, have come about through Mr Sin Beti’s realisation that it could be shown that he was not in the Kyrgyz Republic before that date.
iv) Mr Sin Beti’s evidence in respect of President Bakiyev is also contradictory. He says that when the President heard his story “he was really upset”, the inference being that he knew nothing about the matter, yet later in his interrogation on 5 June 2013 he said that the President (together with the Defendant, Marat and Zhanysh) participated in the attempt on the Claimant’s life.
i) Mr Sin Beti has sought to withdraw his statement; he has made demands for money from the Claimant in return for attending court; he has alleged that the Claimant has “lied and misled” him to give evidence and “offered him a large amount of money”; he has alleged that improper pressure has been put on him to give evidence to benefit the Claimant; and he has alleged that he felt under pressure from the Claimant and his solicitors to give evidence which may be “partial or incomplete to say the least” (see para 87 above).
ii) There is evidence that suggests that at the time Mr Sin Beti provided evidence for the criminal proceedings in the Kyrgyz Republic he and the Claimant may have been contemplating Mr Sin Beti assisting in a claim to be brought by the Claimant. (See para 84 above, and Mr Ismailov’s evidence, at para 101 above, that the Claimant was present at his meetings with Mr Sin Beti, despite the Claimant’s evidence to the contrary).
iii) I agree with Mr McCullough that the evidence as to the circumstances in which (a) Mr Sin Beti emerged as a prospective witness and (b) which then led to him giving a witness statement in Bishkek on 5 June 2013 is unsatisfactory: neither Mr O’Keefe, a retired police officer, nor Mr Ismailov, a criminal investigator, took any notes or produced any record of the discussions and meetings they had with Mr Sin Beti, which I find surprising.
Finally, in assessing what weight is to be given to the hearsay evidence of Mr Sin Beti I have had regard to the matters set out in section 4(2) of the Civil Evidence Act 1995 (see para 28 above). I agree with the observations made by Mr McCullough (see para 172 above). In particular I consider the Claimant’s inability to call Mr Sin Beti to be entirely due to Mr Sin Beti’s deliberate decision for no good reason not to attend court; the circumstances in which the statement was taken give rise to real concerns that it was made in collaboration with Mr Ismailov for the purpose of ensuring the conviction of the Defendant and other Bakiyev family members; and subsequent events suggest that Mr Sin Beti had a motive to misrepresent matters, arising from subsequent attempts to extract a financial advantage from the Claimant in return for his evidence.”
The judge considered the balance of the evidence that the claimant produced. He held that it was insufficient to establish any connection between the defendant and the shooting.
- The Civil Evidence Act, the absent witness and witness credibility: a case in point.
- Documents, Civil Evidence and Witness Statements.
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.