In Mansion Estates Ltd and Hayre & Co (A Firm) , His Honour Judge Saffman (sitting as a Judge of the High Court in the Chancery Division of the Leeds District Registry) gave judgment in a case brought against a solicitor for damages, in which the Claimant alleged that the solicitor had fabricated some of the evidence. The solicitor denied this. The job of the Judge was to decide who was telling the truth.
This of course is what the Court has to decide in nearly every case-although it occasionally happens that the parties agree on the facts but disagree on the law, usually the Judge has to decide what the facts are. Here the Judge very helpfully explained exactly how he came to his decision.He explained the stages of the fact-finding process, and the factors that a Judge must take into account when the assessing the appropriate standard of proof, and the credibility of a witness-in other words, how a Judge decides what the parties must do to prove their case to the satisfaction of the Court, and how he decides that a witness is lying.
He said the following in his judgment of 22 January 2016;
“The burden [of proof] is on the Claimant to establish breach of duty and causation. Notwithstanding that the Claimant asserts that Mr Hayre has fabricated his defence and that it is accordingly dishonest nonetheless the burden on the Claimant is to establish his case simply on the balance of probabilities.”
On the applicable standard of proof, the Judge said this:
“Re B (Children) UKHL 35 is a case concerning the application of the Children Act 1989 but it is of great relevance to the issue of what is meant by “the balance of probabilities”. The House of Lords in that case had to consider the issue of whether, in those cases where the allegation was serious or the consequences of a finding that the allegations were true might be unusually far reaching, there should be a gloss applied to the concept of balance of probability. In other words whether there is a standard somewhere in between “balance of probability”, pure and simple and “beyond reasonable doubt”.
The concept that there was this hybrid was perhaps legitimised by the maxim that “the more serious the allegation the more cogent the evidence had to be to establish it”. Their lordships concluded that the standard of proof does not alter merely because of the seriousness of the allegation or the seriousness of the consequences. Neither should make any difference to the standard of proof to be applied in determining the facts. There was no logical or necessary connection between seriousness and probability. The inherent probabilities were simply something to be taken into account in deciding where the truth lay.
Lady Hale had this to say:
“Lord Nicholls’ nuanced explanation left room for the nostrum, “the more serious the allegation, the more cogent the evidence needed to prove it”, to take hold and be repeated time and time again in fact-finding hearings in care proceedings (see, for example, the argument of counsel for the local authority in Re U (A Child) (Department for Education and Skills intervening). It is time for us to loosen its grip and give it its quietus”.
On the issue of inherent probability she went on to remark on the need to look at matters in context and not in a vacuum;
“Some seriously harmful behaviour, such as murder, is sufficiently rare to be inherently improbable in most circumstances. Even then there are circumstances, such as a body with its throat cut and no weapon to hand, where it is not at all improbable. Other seriously harmful behaviour, such as alcohol or drug abuse, is regrettably all too common and not at all improbable. Nor are serious allegations made in a vacuum. Consider the famous example of the animal seen in Regent’s Park. If it is seen outside the zoo on a stretch of greensward regularly used for walking dogs, then of course it is more likely to be a dog than a lion. If it is seen in the zoo next to the lions’ enclosure when the door is open, then it may well be more likely to be a lion than a dog”.
In the same case Lord Hoffman considered inherent probability;
“There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely. If, for example, it is clear that a child was assaulted by one or other of two people, it would make no sense to start one’s reasoning by saying that assaulting children is a serious matter and therefore neither of them is likely to have done so. The fact is that one of them did and the question for the tribunal is simply whether it is more probable that one rather than the other was the perpetrator”.
He went on to say;
“My Lords, I would invite your Lordships fully to approve these observations. I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not”.
This was a family law case but the principles quite clearly apply in all aspects of civil law where the standard is the balance of probabilities. That is clear, not least in the observations of Lord Hoffman cited above.
I make these observations because the allegations against Mr Hayre are serious and indeed it is possible that a finding that he did fabricate documents may have serious consequences for him. It led to some brief discussion with Mr Chapman during his final submissions on the standard to be applied but it is right to acknowledge that Mr Chapman did readily concede, as in my view he had to, that I must decide this case on balance without adding any gloss.
I recognise however that in so doing dishonesty is less probable than honesty. As Lord Nichols put it in Re H;
“Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A step-father is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, 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”.
“It is also right to say something about the assessment of credibility. In his book “The Judge as Juror; the Judicial Determination of Factual Issues, published in Current Legal Problems 38, Bingham J (as he then was) made this observation:
“the main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case:
a. The consistency of the witness’s evidence with what is agreed or clearly shown by other evidence, to have occurred;
b. The internal consistency of the witness’s evidence;
c. Consistency with what the witness has said or deposed on other occasions;
d. The credit of the witness in relation to matters not germane to the litigation;
e. The demeanour of the witness
In Thornton v NIHE Gillen J suggested that the court must pay attention to these factors:
a. The inherent probability or improbability of representations of fact;
b. The presence of independent evidence tending to corroborate or undermine any given statement of fact;
c. The presence of contemporaneous records;
d. The demeanour of witnesses;
e. The frailty of the population at large in accurately recollecting and describing events in the distant past;
f. Does the witness take refuge in wild speculation or uncorroborated allegations of fabrication?
g. Does the witness have a motive for misleading the court?
The Judge’s comments are a useful checklist to test the evidence that the parties give before the Court, and a sobering reminder of the stringent process a witness should expect to face at trial.