5. Establishing Negligence: Burdens of Proof, Evidence and the Finality of Decision Making

In order to understand the process by which decisions on negligence are reached, I need to explain certain fundamental characteristics of the English civil process, the nature of evidence and of the burden of proof as well as the mechanisms by which it is assessed whether at trial or on appeal. In all this, the English civil process differs markedly from the French.²²⁶

(A) The roles of the parties and of the court

The traditional conception of the English civil process combines the ideas of the adversarial character of the parties and the relative passivity of the judge.²²⁷ This has a number of consequences, but for present purposes the most important is that it is for the parties by their pleadings to define the issues both factual and legal in dispute between them to be determined by the court.²²⁸ As I have earlier explained, until the middle of the twentieth century, in general the body by which these determinations were made differed according to whether an issue was factual (for determination by the jury) or legal (for determination by the judge) and this division has affected the English understanding of the notions of burden of proof and standard of proof. But the most striking point is that it is for the parties not merely to advance the facts which give rise to the dispute and the legal characterisation which they wish to give to those facts, but also to advance the legal authorities (whether statutory or judicial) which, in their view, justify this characterisation. The court’s role is to decide whether the facts as (p.206) pleaded are established and whether the propositions of law as advanced hold good and therefore justify the remedy which is sought. The parties do not simply submit a factual dispute to which the court then applies its relevant consequences in law.

Has this position been altered by the Civil Procedure Rules which have widely been seen as introducing into English law a fundamentally different conception of the relative roles of the parties and of the court in the civil process?²²⁹ For under these rules, the parties are under a duty to help the court in furthering its overriding objective of dealing with cases justly²³⁰ and the court has the task of encouraging the parties to cooperate with each other in the conduct of the proceedings.²³¹ To help courts further the overriding objective, they have a number of powers of management of the process, including powers to strike out a statement of case or to pare down the issues to be tried or appealed.²³² There has indeed been a shift away from traditional judicial passivity towards a degree of judicial interventionism in the civil process. These changes are certainly radical if not indeed revolutionary.

Nevertheless, there is no reason to think that the new rules, either in text or spirit, have changed the relative roles of the parties and the court in defining the nature of the issues to be tried. For while a court now has a power to eliminate issues considered unworthy of trial or appeal, those issues which are to be tried or appealed remain defined by the parties, both factually and legally. This can be seen by the courts’ continuing views of the function of pleadings (or ‘statements of case’ as they are now termed) and by the doctrine of cases decided per incuriam.

As to pleadings, the Civil Procedure Rules encourage the simplification of the particulars of claim and defence used by parties to set out before trial the facts on which they would rely by a requirement that they be concise and clear,²³³ but the purpose of pleadings under the new regime remains ‘to mark out the parameters of the case that is being advanced by each party’ being ‘critical to identify the issues and the extent of the dispute between the parties’.²³⁴ Moreover:

even in relation to evidence and proof, [the Civil Procedure Rules] do not confer on the court the powers which are to be found in other jurisdictions—commonly called inquisitorial or investigative—by which the court itself decides the areas of enquiry and what facts it wishes to establish and, in some cases, by whom the facts are to be established. [Nor do they] signal a major departure from the general principle that it is primarily for each party to decide what its case is and how best it is to be presented to the other party or parties or to the court.²³⁵

So while a court can order a party to put forward a clear and concise claim on pain of its being struck out, it should not take the case out of a party’s hands or require a party (p.207) to put forward a case which is not its preferred case.²³⁶ There is nothing in the Rules to suggest that the courts are entitled to re-characterise the legal basis of the parties’ claims, though they do possess a power to award a remedy not claimed by a party in its statement of case.²³⁷

Moreover, that it is for the parties to advance the law on which they rely as well as the facts is reflected in an aspect of the doctrine of precedent, for a court is not bound by the decision of an earlier court where it was made per incuriam, that is, where it was ‘reached…in the absence of knowledge of a decision binding on it or a statute’ where ‘it is shown that, had the court had this material, it must have reached a contrary decision’.²³⁸ Underlying this doctrine is a rejection of the fundamental principle well-known in other western European legal systems (and accepted by French law) that the ‘court knows the law’, the main significance of which is that while it is for the parties to present the facts it is for the courts to apply the law to the facts.²³⁹ While English judges are exceptionally learned in the law and are traditionally recognised as its ‘oracles’,²⁴⁰ in principle they do not ‘know the law’ in the sense that they are entitled to apply it to the facts put forward by the parties without the parties themselves advancing the authorities in question.²⁴¹

How does this affect the determination of an issue such as negligence? First, it remains the case under the Civil Procedure Rules that a claimant will need to set out either in the pleadings or at trial how he says that the defendant’s conduct was negligent as a matter of fact (what happened, when and where) but also how these facts ought to be characterised as negligent given the applicable standard of care and the balance of the relevant factors. It is not for a court to ‘pick up’ from the facts as apparent from the evidence an aspect of the defendant’s behaviour which it considers negligent where this was not pleaded by the claimant.²⁴² Similarly, it is not for the court to note that the defendant’s conduct fell short of an applicable legislative standard, as the relevance of such a standard must be pleaded by a party (and then will be used as evidence by the court).²⁴³

The differences here with the relative roles of the parties to the French civil process are considerable but should not be exaggerated. The French civil process under the New Code of Civil Procedure follows neither a simplistically inquisitorial nor an adversarial model.²⁴⁴ The starting point is that civil litigation concerns a private dispute invoking the application of private law and this means that the initiative for starting it and much of the course of proceedings are the parties’ responsibility, but also that ‘the subject-matter of the litigation is determined by the respective claims of (p.208) the parties’;²⁴⁵ ‘the court must reach a decision on everything which is claimed but only on what is claimed’.²⁴⁶ Nevertheless, the courts may take on a managerial role over the preparation of the case before it is heard and generally ‘oversee the proper running of the case’;²⁴⁷ and the courts share with the parties the responsibility for collecting evidence so as to see whether or not the facts claimed by the parties are established.²⁴⁸