Cases - Stephens v Cannon

Record details

Name
Stephens v Cannon
Date
[2005]; [2005]
Citation
EWCA Civ 222; Times Law Reports 2 May, CA
Keywords
Expert witness
Summary

Following the appointment of an SJE in a property development dispute, one of the parties got permission to instruct their own expert witness. The SJE valued at £1.9m and the party-appointed expert at £1.5m, a building which existed only in the form of plans. The master hearing the case stated that he found it impossible to prefer one to the other, since he would be setting himself up as an expert and usurping the experts' role. He therefore fell back on the burden of proof; since neither expert's evidence was preferred, the claimants had failed to discharge the burden of proof and the defendants' view must succeed.

The Court of Appeal, allowing the appeal, criticised the master's approach:

'... had he sought to work his way through the specific issues between the experts as to the effect on value of the allegedly positive and negative features of [the subject property], he might well, in the light also of the other evidence, have found his way to a conclusion, one way or another, without resort to the burden of proof'.

The court set out a series of propositions about when a tribunal could rely on the burden of proof:

  1. The situation in which the court finds itself before it can despatch a disputed issue by resort to the burden of proof has to be exceptional.
  2. The issue does not have to be of any particular type; a legitimate 'state of agnosticism' can arise following enquiry into any type of disputed issue.
  3. The exceptional situation which entitles the court to resort to the burden of proof is that, notwithstanding that it has tried, it cannot reasonably make a finding in relation to a disputed issue.
  4. A court that resorts to the burden of proof must make sure that others can discern that it has tried to make a finding in relation to a disputed issue and can understand why it has concluded that it cannot do so.
  5. In a few cases the fact of the endeavour and the reasons for the conclusion will be self-evident; however, in most cases, the judgment must contain explanation and reasons.