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In litigation, the burden of proving a fact usually falls on the person who says it is true, writes Sue Lindsey. They have to adduce evidence, which may include expert evidence, to persuade the court that, on the balance of probabilities, their version of events is right. The Court of Appeal has recently rejected the findings of a judge who had decided between conflicting expert evidence on the basis that the claimants had not discharged their burden of proof (Stephens v Cannon, 14 March 2005 ). What are the principles that applied?

Only in exceptional circumstances should a court resort to making a finding on the basis that the burden of proof has not been discharged.

A helpful illustration of why and when that might arise is the House of Lords' decision in the case of Rhesa Shipping.

That case concerned a ship that sank in calm seas.

The claimant, who wanted to recover on their insurance, claimed that the ship had sunk as a result of a collision with an unidentified submerged submarine. The defendant said that the problem was one of wear and tear. The judge ruled out the wear and tear explanation on the basis of the expert evidence, and so felt compelled to decide that the submarine theory must prevail, even though no submarine had been detected.

Lord Brandon cited the Sherlock Holmes dictum: 'How often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?' He then went on to explain why it had been inappropriate for the judge to apply it. There had, in fact, been a third option available - that the burden of proof had not been discharged. The judge could have decided that the claimant had not proved their case, and the true cause of the loss of the ship was in doubt.

In Stephens v Cannon, the judge had been faced with conflicting expert opinions on valuation. In addition to the usual problems with valuing property (including which comparables apply and when the property might have been sold) the experts had been valuing a hypothetical house - the defendants were supposed to have built it but had not. The judge opted for the defendant's expert's view, saying: 'I am unable to decide that I prefer one view over the other and in those circumstances the case fails to be decided on the basis of the burden of proof.' The Court of Appeal emphasised that the court should resort to finding the burden of proof has not been discharged only when, even though it has tried hard to do so, it cannot reasonably make a finding on an issue in dispute.

Furthermore, and in particular in order to comply with the European Convention on Human Rights, the judgment must explain to the parties (and thereby also any appellate court), why it has not been possible to make any other finding. The valuation was not an 'either/or' issue.

There was a range of values.

Had the court worked through the factors considered by the experts, it might have been able to come to its own view about value without resorting to the burden of proof.

Sue Lindsey is a barrister at Crown Offi ce Chambers. Visit www. crownoffi cechambers. com

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