Civil Evidence Flashcards
Burden of Proof
Evidential and persuasive burden rest on the party who would lose on the issue if no other evidence was led, or if at the end of the case the evidence led by both on the issue is equally persuasive.
Party who raises the issue must prove it. Other party need prove nothing on issue relied upon by his opponent - Thomson v Kvaerner Govan Ltd
Standard of Proof
Balance of responsibilities - Davies v Taylor - Showing that odds of at least 51 to 19 of the thing happening or will do
If it is remotely possible the burden is not discharged, rather it needs to be undischarged for it to be met.
There is no in the middle for criminal and civil burdens.
Burdens swapped
Divorce, Adultery
Fatal Accident Inquires - Civil burden
Allegations of crime - Civil burden
Presumptions
Allow certain facts to be established by implication.
‘An inference as to the existence of one fact, drawn from the existence of another fact ‘
Irrebuttable presumptions of law
They are irrefutable as they cannot be challenged. They originate from statute or case law
Examples: Capacity in contract
Previous convictions in defamation action
Prescription of legal rights - Prescription
Human Fertitlisation and Embryoology Act 1990
Rebuttable presumptions of law
These also arise from statutory provisions but are able to be challenged in any particular case and disproved.
1) Age of child bearing woman
2) Presumption of continuance of life - 80
3) Presumption of death - Common Calamity - Succession (Scotland) Act 2016 S.9 - Each fail to survive each other,
Presumption of Death 1977 - Thought to be dead, but isn’t
4) Presumption of Legitimacy - S5 Law Reform (Parent and Child) (Scotland) Act 1986
Rebuttable presumptions of facts
These allow a fact to be presumed once a certain threshold of facts have been adduced. Threshold will be met in some cases and not in others. Arise from previous case law.
1) Res Ipsa Loquitur - This is presumption of negligence and is translated as the thing speaks for itself. There must be 1) An absence of direct evidence of the cause of the incident 2) Cause of the accident must be within exclusive management and control of defender
Scott v London and St Katherine Docks Co
Inglis v LMS - Train door
Sufficiency in Civil Cases
Proving the essential facts - Must prove right facts for the remedy you want. Dependant on the case
Role of corroboration - It was removed as a requirement for all civil cases. Morrison v Kelly - Stated corroboration was still needed if evidence available, and if you don’t produce it you might lose the case.
Thomson v Tough Ropes - Believed one but not the other still let case win.
Corroboration in consistorial cases
Corroboration in consistorial case - Divorce, Separation, Declarator or nullity of marriage. But not required for one/two year non-cohabitation divorces, simplified divorces. Moorov used adultery - Whyte v Whyte
Admissibility
Six rules:
1) Relevancy - Must be logical relevant to the issues under dispute
2) Best evidence rule in civil cases - Real evidence - Stewart v Glasgow Corporation
Documentary evidence - If lost, and failure of self then you can’t bring evidence. Scottish and Universal Newspapers v Gherson’s Trustees
Joint minute agreeing true copy
True copy
Seeking a declarator of the court of session
3) Hearsay rule in civil cases - No rule against it, but issues come out of the law.
1) Desirability - It’s possible to win a case on the basis of one piece of hearsay evidence K v FJ Kennedy - Social workers
2) Children hearsay statements - Debate over whether an earlier hearsay statement of a child can be used in later proceedings when the child may not have been competent at the time T v T
3) Precognitions and hearsay - They do not count as hearsay Kerr v HMA - Danger of them
4) Collateral evidence rule - Not usually allowed in civil cases, only maybe is earlier similar conduct might be relevant
5) Improperly obtained evidence - Obtained irregular but not illegally
Obtained illegally - May change it is still admissible at the moment Rattery v Rattery
