There were many important cases on procedure and costs in 2016. Choosing a case of importance to litigators was not an easy task. However I kept coming back to the judgment of Master Matthews in Adepoju -v- Akinola  EWHC 3160 (Ch). Chosen, primarily, because it encapsulates civil evidence and the trial process in four paragraphs – a “cut out and keep” section for law students (and practitioners).
(I also like the eventual decision. The Master found that both parties were not telling the truth and neither should be appointed as administrator of the estate that was the subject matter of the action).
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.