21 Jan 2014

Why the Right Evidence, In the Right Way, At the Right Time is Essential for Success In Litigation

A golden rule in litigation is: never make an allegation unless you can prove it. However simple this concept may appear to be, applying it in real cases is often a complex exercise. Getting it wrong can have disastrous consequences. There are many cases where litigants have failed to prove allegations which they were quite confident would be proven, or appeared obvious.

Proving an alleged fact means different things in different circumstances depending on what evidence is allowed to be used to prove that fact, what standard of proof applies and whose job it is to prove a particular fact. These are all technical legal issues.  However, whether, how and when you should use certain evidence are as much strategic decisions as they are legal.

In criminal cases, the prosecutor alone carries the burden of proof of all facts required to prove the charge.   It is different in civil cases, where individuals and corporations seek to enforce their private rights and interests.  In these cases, proving a cause of action or a ground of defence requires that a party show simply what is more probable than not (called the “balance of probabilities”). Where there is a claim and a defence each party has a burden of proof.  The general rule is that the person who asserts a fact must prove it.  This rule has exceptions, though. For example, in some cases, certain facts are presumed to be true unless they are disproven or, in rarer cases, are considered so obvious that they need not be proven at all.

The most common standard of proof in civil and commercial cases is proof to a balance of probabilities. This means proving that an alleged fact is more likely than not to be true.  However, in certain cases, the law may require a party to lead enough evidence to:

 

(a)  establish a merely arguable case or “triable issue”;

 

(b)  prove a fact to the reasonable satisfaction of a decision-maker; or

 

(c)  prove a fact to a degree of certainty that is proportionate to the seriousness of the consequences if that fact were proven.

 

The following example illustrates what can happen if a litigant does not properly deal with evidence at the right time.

 

Jim (not his real name) bought a pub from an owner/operator and leased it back to the seller who agreed to keep operating the pub until Jim could find new tenants.  He later found new tenants and leased the pub to them.  For the first few years, they operated the pub successfully, made good money, and paid their rent on time.

All that changed when the pub started to fall apart.  The tenants investigated and discovered that the cause was termite damage to the timber structures.  When the tenants reported this to Jim, Jim blamed the tenants for failing to ensure proper pest control, which was their responsibility under the lease.  The tenants denied they had neglected to control pests, demanded that Jim pay for the repairs and restore the pub to its former condition, Jim refused, the tenants refused to pay rent and the relationship irretrievably broke down.

Predictably, Jim sued for unpaid rent and the tenants counterclaimed for failure to effect structural repairs under the lease.  Throughout the court case, Jim demanded to see evidence that the tenants had arranged pest inspections and treatments. The tenants insisted they had such evidence but failed to produce it. Jim assumed the evidence did not exist and took the case to trial on that basis.

Shortly before the trial, the tenants finally gave Jim a copy of their pest control certificate.  Jim was so surprised by this that he rang the pest controller to make sure the certificate was authentic.  The pest controller’s advice to Jim was even more shocking.  According to the pest controller, not only had the tenants called him out regularly to inspect and treat the pub for termites, but damage to the pub had likely been occasioned before the tenants had even moved in.  When asked how this was possible if the pub had only begun to fall apart several years after the tenants had moved in, the pest controller explained that as they eat through the timbers, termites fill in the tunnels they form with a natural “cement”.   This “cement” takes a long time, often many years, to dry out, and it is usually only then that the termite-infested structures show signs of failure.

Luckily for Jim, the original owner, having leased the pub back from Jim and then assigned the lease to the new tenants, had thereby assigned all his rights and liabilities under the lease to the new tenants.  This included the original owner’s liability to Jim for failing to control pests in breach of the lease.  So Jim was able to salvage his case against the tenants based on evidence of the original owner’s breaches.

Things could have been a lot worse for Jim.  He was lucky that the law made the tenants liable for the original owner’s breaches because of the lease-back arrangement.  Otherwise, Jim might well have:

 

(a)  been ordered to compensate the tenants for the loss of trade caused by the dilapidation of the pub; and

 

(b)  lost his right to sue the original owner for compensation under the relevant statute of limitations (which bars claims for breach of contract made more than six years after the breach occurred).

 

The lesson is, before commencing legal action, always ensure you have clear, written legal advice on the following matters:

 

(a)  What are the relevant facts?

 

(b)  Which of those facts do I have to prove?

 

(c)  Do I have enough evidence to prove the facts that are mine to prove?

 

(d)  What additional evidence do I need and where can I find it?

 

(e)  If the other party has stated its intended defence:

 

  • what facts must it prove to establish that defence;

  • do I have evidence to rebut those facts; 
  • if not, where can I find such evidence;

  • if I cannot access such evidence through my own investigations, how else can I protect my rights (e.g. apply for pre-action discovery, make enquiries of third parties or expert witnesses or join other parties as co-defendants to the claim)?

Unless you are under pressure to act quickly (eg because of a statute of limitations, a risk that the other party will dissipate their assets, etc.), you should usually only take formal legal action in a Court or tribunal once you have (with the help of your lawyer) thoroughly prepared the factual basis of your claim and taken legal advice about its merits, about your prospects of success and the claim’s value, as well as the likely risks and costs involved.

This is general information only, and does not constitute specific legal advice. Murray Thornhill is the Director at HHG Legal Group with the Litigation/Commercial Law team. Daniel Morris is an Associate with the Litigation/Commercial Law team at HHG Legal Group. If you would like further details in relation to this information, please contact HHG Legal Group on 1800 609 945.

100 years of Supporting West Australians

"My family law experience with Mary Roubos has restored my faith in solicitors in general. She not only demonstrated her legal expertise and flair, but also showed a compassionate and understanding nature during the lengthy process. I felt that Mary went above and beyond her obligations as my solicitor, and really listened to me. I would highly recommend Mary and her assistant Debra Wilson, who also demonstrated professionalism and excellence on all levels."

Renee Frangiosa

"Always fast and thorough service. Thank you"

Sitka Pil

"I found Ben most helpful and always prompt to let me know where things were at. Will definately use Ben again and will recommend to others."

Gerrit and Mary Van Bralal

"We wish to express our thanks for your help in attending to our mother/ wife's will - Mrs Grace Margaret Vessey. Aimee was extremely helpful and easy to deal with. We are greatful for your help with our affairs."

Ms Rosalyn Norman, Mr Stephen Vessey

"Thank you ever so much for all your hard work on my case Nicole, I really appreciate everything you did for me."

Workers Compensation Client

"Thank you for such great assistance with the transaction of Flying Domestics on behalf of Lorna Good. It has been such such a pleasure to work with the HHG Legal Group and I look forward to working with you in the future."

Jim Goodwin

"Simon Creek and his team were at all times empathic, professional and confident.  My matter needed to be addressed within a pressing time frame, and their availability at short notice and contact after hours was much appreciated.  It caused me considerable stress, but having such a thoroughly reliable and competent team to call on helped me to feel in control. Although I hope not to need their services again in future, I would be confident in doing so!"

Dr Lana Bell

"A good outcome is what we can expect.  A great outcome is a sign of a company which does the very best for their clients. A very big thank you to Daniel Morris for showing empathy towards my small and much needed legal action.

To HHG Legal Group, thank you for a great outcome.  I would recommend your company to anyone seeking legal services."

Jan Atkinson

"Your support this morning was amazingly kind, not to mention your totally reassuring competence, knowledge and wisdom that you used on my behalf.  It was extremely reassuring to have your knowledgeable support, and I particularly appreciated your real and obvious kindness to me. It means so much at a very difficult time. I'm so grateful to you."

Family Law Client

"I highly recommend the services of HHG Legal Group for both personal and business needs. HHG is very up to date with legal advice and are in tune with the evolution of business."

Robert Forgione

"Sue and myself would like to thank HHG for the way in which our dispute was resolved. It is good to know that people who do not have an understanding of the legal system can rely on people like yourself and the company you represent. Without the assistance of HHG we could not have resolved the problems we were facing, not only have we resolved the issue but the outcome was more favourable then we would have thought possible. Thank-you and please pass on our thanks to all those who worked behind the scenes to achieve this outcome."

Rick and Sue Ashton

"Janene was very professional and we established a good rapport quickly. The subject of death and wills can be quite confronting to deal with, however Janene's approach was soft and accommodating."

Lynette Livesey

"A big thank you to HHG for their professional service, continued support, and wide range of legal knowledge. Our clients have given us nothing but kind words regarding HHG Legal Group and so we have no hesitation in referring and recommending Simon Creek and HHG Legal Group for their outstanding services and legal expertise."

Nigel Plowman, Director at McKinley Plowman & Associates

"Simon is a friendly and practical legal advisor. I have received great feedback from the clients I have referred to him and his team at HHG Legal Group."

Richard Beal, Director at BDO

"Over the last few years, I have been impressed by Simon’s legal ability, management skills, entrepreneurial spirit, personal integrity and people skills. He appears to be that rare breed of lawyer – both knowledgeable and commercial."

Michael Malone, Founder of iiNet

"Our family has been a client of HHG Legal Group over many years and most recently in 2013 and February 2014.  Business has included drawing up of wills for three generations and preparing of probate for my father in law.

I would have no hesitation in recommending HHG Legal Group to anyone requiring such services."

Bernice Climie

"You should be congratulated for the manner in which your staff address clients and we found our dealings with your company, once again a very pleasant experience and we would like to truly thank you for your efforts."

Steve Harvey and Jane Powell

"HHG Legal were absolutely fantastic. Extremely responsive and brought calm to our chaotic family situation through their knowledge and caring attitude. Extremely professional from our very first contact with them and they expertly guided our family though the required legal process over almost a 12 month period."

Amanda Williamson

"Fantastic team! They really care about their client. Tim Colcutt is a 'go that extra mile' guy who gives his client his all. I can't recommend HHG and Tim enough."

Kerry Samson

"Anne Hurley has been such a valuable resource of information and advice, her wealth of knowledge is truly impressive and her ability to explain things in a way that makes them easily understood is very much appreciated. Anne and the wider HHG Legal Group are always a pleasure to work with."

Giorgia Parham

"I had a fantastic lawyer in Anne Hurley. She helped me out a great deal with good, sound advice in a friendly , professional manner. First class, thanks Anne"

Graeme Hammond

"Marine Plant Systems has been working with HHG Legal Group for a few years now and they continually provide first class service. Their professional advice has been invaluable to our company."

Carolin Grimm

"We were kept up to date at all times. Pricing was always updated over the time period so we remained "in budget". Personal access to someone whenever I had questions. All in all a great experience without too much fuss."

Rosslyn Tasker - COO AltusQ Pty Ltd

"Good service you can count on."

Miles Lee

"HHG Legal Group have provided outstanding support as I have taken the journey of buying a business, their professionalism is beyound reproach. Their assistance throughout the Due Diligernce process have been invaluable, I would fully recommend them."

Mark Armitage

"I have experienced how good the HHG Legal Group team are over the last 6 years and highly recommend them."

Lyn Hawkins

"Very friendly and efficient service - what a pleasure working with Anne."

Jacques Taylor

"I highly recommend Daniel from HHG Legal Mandurah. When dealing with a complicated legal property matter recently I was extremely impressed by Daniel's honesty and integrity and the legal advice I received. I am very happy with the service from HHG Legal."

Tony Walker