Related topics

Extrinsic evidence of Custom and Usage



Parol Evidence


Law and Sea.
Law Quotes: Facts

Anything done, or said; an act or action; an actual occurrence; a circumstance; whatever comes to pass; an event. (Dictionary of Law, W.C. Anderson, Chicago, 1889.)
Read more …

Law and Sea.
Law Quotes: PROOF

Outside of region of mathematics, proof is never anything more than probability, by Lord Guthrie in Nobel’s Explosive Co. v British Dominions General Insurance Co. [1918] SLT 205 at 206.
Read more …

Last updated: 01-Jun-2016

Tindall CJ said in Robertson v Jackson (1845) 2 C.B. 412 at 427:

… the words in themselves bear no precise meaning until they obtain their application by evidence.

Lord Dunedin in Charrington Co Ltd v Wooder [1914] AC 71 at p.82 said that:

… in order to construe a contract the Court is always entitled to be so far instructed by evidence as to be able to place itself in thought in the same position as the parties to the contract were placed, in fact, when they made it – or, as it is sometimes phrased, to be informed as to the surrounding circumstances.

Per Devlin J. in Waddle v Wallsend Shipping Company, Ltd. [1952] 2 Lloyd’s Rep. 105 at p.139:

In a case where substantially all the facts have been brought to light, it is no doubt legitimate to argue that some cause must be found, and therefore the one that has most to be said for it should be selected. Where it can fairly be said that all possible causes have been canvassed, the strongest must be the winner. But in a case where all direct evidence is missing, there is no ground for saying that the most plausible conjecture must perforce be the true explanation. The answer that may well have to be given is that not enough is known about the circumstances of the loss to enable the inquirer to say how it happened. All that he can say is that no theory advanced has been able to collect enough support from the facts to make it more likely than not that it happened in that way and not in any other.

Per Lord Nicholls of Birkenhead in Re H (minors), [1996] AC 563 at para 87:

87. Evidence is the means whereby relevant facts are proved in court. What the evidence is required to establish depends upon the issue the court has to decide. At some interlocutory hearings, for instance, the issue will be whether the plaintiff has a good arguable case. The plaintiff may assert he is at risk of the defendant trespassing on his land or committing a breach of contract and that, in consequence, he will suffer serious damage. When deciding whether to grant an interlocutory injunction the court will not be concerned to resolve disputes raised by the parties' conflicting affidavit evidence.

Per Moore-Bick J. in Fyffes Group Ltd and Caribbean Gold Ltd v Reefer Express Lines Pty Ltd and Reefkrit Shipping Inc, (The Kriti Rex) [1996] 2 Lloyd’s Rep 171 at p.181:

However, as a matter of ordinary experience it is sometimes possible to be satisfied, even, perhaps, to a high degree of probability, that a certain effect proceeds from a given cause even though one cannot identify the mechanism whereby it comes about. Again, therefore, I do not regard them as conclusive; they too have to be considered in the light of all the evidence.

Bulfracht (Cyprus) Ltd. v Boneset Shipping Company Ltd. (MV Pamphilos), [2002] EWHC 2292 (Comm) per Mr Justice Colman:

If parties will not co-operate on matters such as inspection, the taking of samples and disclosure of documents, the resolution of their disputes by arbitrators becomes far more difficult and far more expensive. That, however, does not normally render inadmissible evidence which has been obtained unilaterally and without co-operation with the opposite side, although such evidence may be of little weight. The arbitrators, like a judge, may have to do their best with what little they have, using such commercial, technical and arbitral experience as they may have. While they may not create facts where there is no evidential basis whatever, they will no doubt strive to make positive findings on the balance of probabilities rather than giving up the task and determining material issues only on burden of proof. That said, there may be cases where so little evidence is put before them that sensible findings of fact are impossible and burden of proof is all that remains.

In CHS Inc Iberica Sl & Anor v Far East Marine SA (M/V Devon) [2012] EWHC 3747 per Cooke J at para 20:

20. In my judgment, there are only two possible explanations for this absence of disclosed documents discussing the cause of the damage, both of which bear unfavourably upon Owners. The most obvious explanation, and to my mind the most realistic, is that such documents did exist but have not been disclosed. If, as the Owners suggested, no one was able to come up with a cause, that would have been the subject of considerable exchanges between those involved, with various potential explanations being put forward and rejected. Instead, there is just a ghostly silence on the subject. The alternative explanation is that there was a deliberate policy not to set out the cause in the documents and those instructed were prevailed on not to do so. There can only be one reason for either course of action, which is that the cause or possible causes discussed were causes which the Owners wished to hide because it or they were causes which would not have assisted them in their dispute with CHS.

Per Smith J in Euro-Asian Oil SA v Abilo (UK) Ltd & Ors [2015] EWHC 1741 (Comm):

… the court requires compelling evidence before finding bad faith in that, while applying the civil standard of proof, it generally supposes that people probably behave honestly…

Leave your comments

Form by