Judicial Fact Finding
Master Matthew’s judgment, handed down on the 7th December 2016, provides a straight forward analysis of the requirements of modern civil evidence. This highly contentious case of administration of a complex estate, worth well into seven figures, with such diametrically opposed factual accounts, presented the opportunity for Master Matthews to outline the fundamentals of civil evidence.
The full judgment is worth a read, not only for its lessons on civil evidence, but for its rather dramatic ending as Master Matthews found neither party were suitable to administer the estate. Finding that the Defendant was not so entitled due to a polygamous marriage and, whilst the Claimant had the highest entitlement, she had lied to the court which gave rise to a ‘special circumstance’ for the court to appoint an administrator of the estate.
The deceased died intestate in Nigeria in 2015 with substantial assets in both the United Kingdom and Nigeria; in these proceedings, the parties were simultaneously challenging each other’s beneficiary status and disputing who should administer the estate. The Claimant (the deceased’s daughter) asked the court to grant her Letters of Administration as opposed to the Defendant and asked the court to determine whether the Defendant was lawfully married to the deceased. The Claimant asserted that a ceremony in Nigeria in 2006 was not a lawful marriage and was, in fact, her Uncle’s housewarming party; she additionally argued that the Defendant had not divorced his previous wife in 2002. Evidence of the validity of the marriage ceremony under Yoruba Native Law & Custom included photographic evidence and a joint single expert.
It was held that the Claimant was an unsatisfactory witness and had interfered with the estate which an honest and trustworthy witness would not have done; this included debiting £17,000 out of her deceased mother’s bank account with references of ‘student loan’ and ‘credit card loan’. Where the Defendant gave contradictory evidence, the Defendant’s evidence was preferred, and Master Mathews found he was more engaged with the court than the Claimant.
In the preliminary parts of his judgment, Master Matthews helpfully outlined the approach that the Court takes when considering evidence and reaching its decision. Whilst this was directed at the litigants, it provides a very useful reminder for practitioners.
Of particular note are paragraphs 10-12 of the judgment:
10. 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.
11. 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.
12. 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), .
These 3 points demonstrate that the Court’s role is to not necessarily seek the objective truth of the matters in issue, but to find the most likely view of what happened utilising the material provided and presented to the Court. The Court may also consider what should have been put before the court, but by the choice of the parties was not.
A key element of this case was the evidence the parties should have put before the Court but chose not to. In particular, the Defendant was unable to provide any supporting documentary evidence to his claim that he had lawfully divorced his previous wife in 2002; Master Matthews attributed significant weight to this. The evidence available to the Court on this point consisted of witness statements, oral evidence, photographs and expert evidence but only the Claimant and Defendant were called to give evidence, which Master Mathews found remarkable, as the ceremony had been attended by dozens of people.
This example serves as a reminder to all practitioners and litigants: when seeking to prove a fact to the Court, an assertion supported by a statement of truth may not be enough. One must step back and consider what evidence the Court might reasonably expect to be adduced in support of the claim to meet the burden of proof, not only how the evidence of the opponents might be discredited.