A fundamental rule that ensues from court proceedings – being criminal or civil in nature – is evidence. Proving what you claim is essential for the success rate of a lawsuit. Notwithstanding that all this seems logical, rules of evidence have been engraved into our Civil Code (as per article 562) ever since the code’s own conception.
Article 562 contemplates that “…the burden of proving a fact shall, in all cases, rest on the party alleging it”, echoing the spirit of justice in that one must substantiate what he claims with evidence.
But, what is this burden, and how does one get to successfully prove what one claims? Simply put, every case has its own storyline and, therefore, evidence gathering from one case to another varies, as does its success rate to strike the balance that is required by law.
Speaking of balance − yes – the law does impose yet another piece of fundamental rule that determines the standard of proof that must be achieved in order to substantiate one’s claims. This essentially is the notorious balance of probabilities that is employed in civil law spectrum.
In theory, such standard is struck if the allegations are found more to have had occurred than not, especially when considered in light of the events of a case. This standard is met by producing suitable and sufficient evidence in support of the claims or allegations. From a mathematical perspective, the likelihood of events must transpire to have happened on a 51 per cent basis and not on a 50-50 basis.
In other words, proving the probability of the veracity of events, through clear and unequivocal evidence, is what is required to jump the evidence hurdle.
In truth, our courts remain a doubting Thomas – they must see to believe. More importantly, they must also believe what they are seeing, or rather, hearing. Such rules are further qualified by yet another norm – the moral conviction of the judge. In principle, one must not only strike the standard of proof of balance of probabilities but must also convince the sitting adjudication that the events one claims to have happened really did happen or that they are based on true events. Moreover, the best evidence (‘l-aqwa prova’) must always be brought when producing evidence in lawsuits.
By means of an example, testifying in your own words (known as ‘viva voce’ testimony) before an adjudicator might not (in certain instances) be enough to entertain the legal requirements of bringing sufficient evidence. If, for instance, the case involves a written agreement, then the original copy or a true copy of such must be exhibited during the tenure of the lawsuit. Testifying about such document does not prove the existence thereof.
Every case has its own storyline and, therefore, evidence gathering from one case to another varies as does its success rate to strike the balance that is required by law
These fundamental rules of evidence – as always – played their part in determining a recent judgment, delivered by the Civil Court, First Hall, bearing the names ‘Farrugia v Cassar’ delivered on May 5.
In a nutshell, the plaintiff and the defendant were in a long-term relationship. The plaintiff claimed to have asked the defendant to deposit some of his monies in her personal bank account – which she had initially accepted. Allegedly, the sum being trusted in the banking accounts of the defendant ran into thousands – €73,000. Additionally, the claimant held that he had also entrusted her with three golden boxes.
The plaintiff was loaded with the burden to prove these allegations in accordance with the law.
The parties broke off their relationship and the plaintiff sued for the return of these assets. The defendant pleaded that what was initially given by the plaintiff had been returned to him following their break-up. Hence, according to her, nothing was owed to the plaintiff.
The evidence brought centred around the production of bank representatives who were summoned to testify regarding the respective financial records of the parties. This is a clear example of the best evidence rule.
Both parties testified their own version of events. The plaintiff contended that the defendant had withdrawn large sums of monies from his bank accounts by using a power of attorney that was issued in her favour. The power of attorney was later revoked. The defendant contested this. This judgment contains two different conflicting versions of events. In such cases, the courts face the moral conviction dilemma.
The court noted that the plaintiff failed to identify or quantify the monies that according to him were withdrawn by virtue of the power of attorney. Evidence of substantial withdrawals was produced, but this did not contain the identity of the actual person who had withdrawn the sums. Hence, on its own, this evidence had no weight. Moreover, the plaintiff failed to substantiate, or rather explain with clarity, which of those withdrawals he was contending to have occurred without his authorisation.
The court held that evidence demonstrating that the defendant’s bank deposits had increased substantially during the years in which the parties were in a relationship did not sufficiently prove that the defendant had illicitly withdrawn funds.
Clearly, the plaintiff needed much more proof in order to substantiate his claims and be refunded the €73,000.
Having said that, the court did acknowledge the fact that the defendant did not justify the substantial increase that occurred in her bank accounts as the defendant argued that she inherited assets and that this resulted in financial growth.
Ultimately, the court determined that the plaintiff failed to prove his case. It deemed that it was the plaintiff who was in the first place burdened with the weight to prove what he was alleging. Evidence produced by him was not deemed as clear and unequivocal to prove the probable veracity of the events he was claiming. The rule envisaged in article 562 was not entertained and, as a result, the court dismissed the plaintiff’s claims.
Keith A. Borg is a partner at Azzopardi, Borg and Associates Advocates.