UK LAW

UK Law



Introduction

The purpose of this paper is to highlight the terms of Evidential Burden and Legal Burden, aided with examples of live court cases. The paper also seeks to gain clarification on the issues pertaining to the litigation processes in the court room.

Discussion

Evidential Burden

Evidential Burden can be best explained as the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or nonexistence of a fact in issue, due regard being had to the standard of proof demanded of the party under such obligation. This phenomenon does not signify a burden of proof. It is however, a burden of raising an issue as to the matter in question fit for consideration by the tribunal of fact.

Legal Burden

“The necessity of proof always lies with the person who lays charges.” This sentence clarifies the intent and defines what the phrase “legal burden” signifies. It can be concluded from this explanation that the person who levies the charges is bound to provide all the relevant facts and proofs in order to substantiate their assertions in order to make a case.

Let us take the example of a case which incorporates both these phenomena for clarification's sake.

In proceedings for civil contempt based on an alleged breach of a freezing injunction restraining dealings with assets below a certain financial minimum, the burden of showing remaining assets in excess of the minimum lay with the alleged contemnor but was only an evidential and not a legal burden.

Mr Justice Lewison so held in the Chancery Division when allowing an application for committal brought by the claimants, Great Future International Ltd, Wardley China Investment Trust, Asia Pacific Growth Fund II LP, China Dynamic Growth Fund LP and Firstee Investments LLC, against the second and third defendants, Barry and Stuart Hansen, on the ground that they had breached a number of freezing injunctions and orders for disclosure that had already been made by the court in the main action between the parties. The first and the fourth defendants to the main action, Sealand Housing Corporation and Drewson Capital Corporation Ltd, took no part in the contempt proceedings.

Mr Leslie Kosmin, QC and Mr James Potts for the claimants; Mr Anthony Connerty for the second and third defendants. MR JUSTICE LEWISON said that for the purposes of article 6 of the European Convention on Human Rights, proceedings for contempt, even if civil contempt, were classified as criminal proceedings.

That did not necessarily mean that an application for committal for civil contempt was a criminal proceeding for the purposes of domestic legislation: whether civil contempt was a criminal offence was a matter of some controversy where the preponderance of authority suggested that it was not. The burden of proof for civil contempt was on the applicant. The standard of proof was proof beyond a reasonable doubt. That was the position in domestic law even prior to the incorporation of the European Convention.

Where the contempt was based on an alleged breach ...