Nemo Dat Quod Non Habet

Nemo dat quod non habet, literally means “no one gives what he doesn’t have”. This is a legal rule, sometimes called the nemo dat rule, which states that the purchase of a possession from someone who has no ownership right to it also denies the purchaser any ownership title.

It is equivalent to the civil “Nemo plus iuris ad alium transferre potest quam ipse habet” rule, which means “one cannot transfer more rights than he has”.

The rule usually stays valid even if the purchaser does not know that the seller has no right to claim ownership of the object of the transaction; however, in many cases, more than one innocent party is involved, making judgment difficult for courts and leading to numerous exceptions to the general rule that aim to give a degree of protection to bona fide purchasers and original owners.

The possession of the good of title will be with the original owner.

The original owner can obtain protection against the former owner through the doctrine of estoppel (see also, s 21(1) of the Sale of Goods Act 1979 ‘…unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell). Methods of the estoppel can be by words, by conduct, or by negligence.

Equity Law: An Introduction

The law of England and Wales could be described as a body of rules, some of which are defined by legislation, others that have evolved through centuries of judgments being delivered in the courts. The latter is known as the common law of the country and is based on the legal precedents or rules developed from these cases. There is, however, a third source of law in England – that of Equity – which serves to act as a supplement to the laws of England, stepping in to enhance its application where the result would be contrary to natural justice or too harsh.

Equity introduction: the origins of equity

In the 11th century, as the common law developed a claimant could only bring a case if it fell within the strict forms established. In relation to property, for example, they had to show legal title.

Often a claimant had an interest in property that fell short of this, and which arguably it would be unjust to deny, such as in early forms of trusts where the property was conveyed to one person with the intention that it was held for the benefit of another.

In that situation, where justice was denied through the courts, the claimant could petition the King. The Lord Chancellor would deal with the petitions on the King’s behalf. Thus a two-court system evolved, one dealing with the common law with it’s more rigid rules, and one administered by the Court of Chancery based on legal principles, fairness and flexibility.

The two bodies of law were often seen as being in contradiction. Where the two laws conflicted, equity would prevail.

One common example of equity in practice is the law of trusts. Trust evolved as an equitable addition to property law and was used where one person held legal title to a property, but the courts held that it was fair, just and equitable that the legal owner used the property for the benefit of another. This was the first legal recognition that there could be a split between legal and beneficial ownership.

In the 1870s the primacy of Equity was enshrined in law through the Judicature Acts. This legislation also combined the two courts into one court structure, although the two systems of law remain distinct. The majority of modern courts apply both sets of rules to proceedings.

Equity introduction: The Equitable Principles

Equitable principles are expressed as a series of legal maxims, which reflect the more flexible application of this strand of the law. They can be deviated from in specific cases, and individually do not cover the whole ground. The most commonly referred to maxims are:-

1.  Equity sees that as done what ought to be done
2.  Equity will not suffer a wrong without a remedy
3.  Equity delights in equality/Equality is equity.
4.  One who seeks equity must do equity.
5.  Equity aids the vigilant not the indolent.
6.  Equity imputes an intent to fulfil an obligation
7.  Equity acts on persons rather than objects
8.  Equity abhors a forfeiture
9.  Equity does not require an idle gesture
10.  He who comes into equity must come with clean hands
11.  Equity delights to do justice and not by halves
12.  Equity will take jurisdiction to avoid multiplicity of suits
13.  Equity follows the law
14.  Equity will not assist a volunteer
15.  Where equities are equal, the law will prevail.
16.  Between equal equities the first in order of time shall prevail
17.  Equity will not complete an imperfect gift
18.  Equity will not allow a statute to be used as a cloak for fraud
19.  Equity will not allow a trust to fail for want of a trustee
20.  Equity regards the beneficiary as the true owner.

They overlap and create a system designed to remove injustice from the application of common law. The overriding message is that equity acts on the person and will not suffer a wrong to be without a remedy.

Equity introduction: what remedies are available in the Law of Equity?

Remedies are….

Equitable remedies offer typically more flexible and arguably more intuitive solutions to a dispute than other forms of remedy They tend to be used by the courts where non-equitable remedies such as damages would not provide an adequate solution for the claimant. They also differ from other remedies available to a claimant as their application is at the discretion of the court based on the facts of the case.

Examples of equitable remedies include:

1.  Injunction
2.  Specific performance
3.  Account of profits
4.  Recission
5.  Rectification
6.  Equitable estoppel
7. Specific property remedies, such as constructive trusts.
8.  Subrogation
9.  In very specific circumstances, an equitable lien.
10.  Equitable compensation
11.  Appointment or removal of fiduciary
12.  Interpleader

For equitable remedies to be available, a claimant would have to show that there had been an infringement of a right, and that equity should provide an alternative to damages.

In practice, the two most commonly used remedies are generally injunctions and specific performance.

An injunction is mainly used to stop someone from doing something. For example, an injunction may be used to stop a building project from commencing, or from preventing publication of a potentially damaging material.

Specific performance can be used to direct a party to do something, such as performing a contractual obligation.

Equity introduction: How does Equity work in practice?

‘Equity sees that as done what ought to be done’ is often the first equitable principle mentioned and it has many modern day practical examples.

Put more simply this principle means that when you are required by law to perform an act, equity will regard this to have been done as it ought to have been done, even before it has happened. This gives rise to the concept of ‘equitable conversion’.

Equitable conversion acknowledges an interest in the outcome of a contract before the terms of that contract have been performed. This has consequences for both parties if something goes wrong. So, for example, if you enter a contract for the sale of property, the buyer is considered to have obtained an equitable right that becomes a legal right once the transaction is completed. This equitable interest in the outcome of the contract means that if there is a breach, the buyer may be entitled to specific performance.

Alternatively, this principle will step in where a technical breach of a contract term has occurred, but that breach has significant and unduly harsh consequences. So, for instance, where a life insurance policy has lapsed due to failure to pay premiums, the equitable principle could be invoked. This happened in a case where the letter from the insurer advising of the failure to pay, and the consequent risk of cancellation, was not received by the policyholder. If it had been received by the policyholder, who was terminally ill, the payments would have been made, and the policy would still have been in force at the time of his death.  The insurance company agreed that the matter should be dealt equitably and as if the policyholder had made the payments. They allowed his widow to receive the sum assured, less the outstanding premiums.

Seeking legal advice

As the equitable principles can be applied by all courts in England, recourse to them is not uncommon.  In cases where the standard legal remedies don’t provide adequate redress, knowing which equitable remedies may be able to assist is critical to ensure that justice is done.  This branch of law is not without its difficulties though, and it is always advisable to speak to a solicitor to fully understand how the law may work for you.

What is Estoppel?

Estoppel is a long-established doctrine in English law which, put very simply, prevents a person who agrees one set of facts with another individual going back on their word. For instance, if you have been told that you no longer owe a debt, but the creditor later insists on payment in full they may be estopped from enforcing their right to repayment.

Estoppel is not, however, a simple doctrine and there are a number of different ways in which it can operate. The link between the different types of estoppel is hard to determine and can make it difficult to provide general advice. While the application of the doctrine can be a beneficial way of defending your rights or a prior agreement, legal advice is always recommended to ensure that you protect your position with the maximum effect.

Common types of estoppel

Such is the complicated nature of the doctrine of estoppel, a definitive list of the kinds of estoppel that are common to the law of England largely eludes. Broadly, however, estoppel can be divided into four distinct groupings:

1. Estoppel by representation;
2. Promissory estoppel;
3. Proprietary estoppel;
4. Estoppel by convention.

Estoppel by representation

This is sometimes referred to as an evidential rule, and its principles are used when a case is brought to court.  It can be used to prevent a plaintiff denying that a statement or set of facts are true where they had previously represented that they were. The plaintiff would be estopped from doing so if the defendant had acted to his detriment believing the plaintiff’s original statement was honest. This rule prevents people from saying one thing out of court, inducing someone to rely on it, and then go into court to deny what they said was true.

Estoppel by representation cannot be used as the basis of litigation. It is commonly referred to as being a ‘shield, not a sword’. However, its very operation can help build a case. For instance, someone says that they have passed property to you and you rely on that representation by making improvements to the land and buildings that they said were yours. If the transfer does not occur and the owner makes attempts to recover the property, you may be able to rely on the fact that they represented that the property had passed to you, to estopp them from denying that fact and defend the claim.

Promissory estoppel

Promissory estoppel is often seen as an extension of estoppel by representation. This is because it includes many of the elements required for the latter.

To establish promissory estoppel, you need to establish three elements:

1. An unambiguous promise by words or conduct;
2. A change of position in reliance on those words or behaviour. Detriment does not have to be proved.
3. Injustice if the promise were to be revoked.

Again it is a ‘shield, not a sword’ so cannot be used as a basis of an action, but could be used as a defence.

One such example could be in the context of a landlord/tenant relationship. As part of the lease, the tenant is obliged to pay rent. The tenant has been complying with their obligation and paying rent timeously. However, the tenant falls on hard times, and the landlord tells them they will not charge them rent until they are back in employment. After a couple of months, the tenant gets a new job but does not restart rental payments. The landlord attempts to sue for payment of the rent for the whole period. While they would be entitled to the rent from the point that their tenant found employment, they would be prevented from seeking the rent for the period that their tenant was unemployed as they had represented that they would not charge rent, and the tenant acted on that.

Proprietary estoppel

Proprietary estoppel occurs where someone relies on the belief that they have, or will have, an interest in land that belongs to someone else. This reliance will mean that the person to whom the land is promised expends money or otherwise acts to their detriment in the belief that the property or land is, or will be, theirs.

For instance in the case of Inwards v Baker [1965] 2 QB 29 a father promised that he would leave land to his son in his will, and encouraged him to build a house on it. His son did so and lived there for 30 years. However, on the father’s death, it transpired that the land had not been transferred in the will. The executors were estopped from evicting the son.

Proprietary estoppel can provide the basis for a case, where someone seeks to enforce their right to land that was promised to them. This sets it apart from estoppel by representation and promissory estoppel. It means that you can bring a claim to be granted an interest in land, and not just defend yourself from having claims brought against you.

For instance, in the case of Thorner v Major [2009] UKHL 18, the claimant had worked for 30 years for his father’s cousin – Peter – without payment, on the understanding that he would inherit the farm on Peter’s death. However, when Peter did pass away, he left no valid will. The claimant raised an action asserting that he was entitled to the farm under the law of proprietary estoppel. The unpaid work that he had done was carried out on the understanding that one day he would inherit the land. The House of Lords agreed that it would be ‘unconscionable’ for him not to inherit and the farm was passed to him.

Estoppel by convention

Estoppel by convention extends the boundaries of estoppel to include stopping people from arguing a point because of the way that they have acted over time. Instead of focusing on the behaviour of one party who induces another to act in a certain way, estoppel by convention looks at the way in which both parties to a contract have acted due to an assumed state of the law or facts. If consistent over time these actions could amount to a convention.

The critical requirements of this type of estoppel are that:

1. The assumption is shared by the parties;
2. The party which claims the benefit of the convention must have relied on it. Reliance can be as little as being influenced by it in some way.
3. It must be inequitable for the party to act contrary to the convention so that he is estopped from doing so.

Importantly here estoppel by convention does not require inducement by one party, nor detriment through reliance from the other. On that basis, an assessment of inequity will become a large part of the consideration.

Other types of estoppel

Although these are the four significant categories of estoppel, it is not an exhaustive list. Estoppel is the root of the doctrine of res judicata, for instance. This is where a party is prevented from re-litigating an issue which has already been determined and is also known as ‘cause of action estoppel’ or ‘issue estoppel’.

Why you should seek legal advice

Estoppel can be an extremely useful mechanism in litigation, and in asserting rights. It is far from straightforward though. There are many different types of estoppel, and as a doctrine, it has wide application. Proprietorial estoppel, for instance, can act in a way which protects your property rights or compensates you should a promised bit of land not be forthcoming. The operation of this doctrine is complicated, and legal advice is recommended to consider whether you have rights that can be enforced, or defended by estoppel.

Types of Trust

Trusts offer a way to protect and manage your assets both during your lifetime and after your death. Assets that can be put into trust include money, shares and investments, and property.

Although there are many different types of trusts, they all consist of the same tri-partite fiduciary relationship between a settlor, trustee and beneficiary.

The settlor is the person who puts their assets into the trust. For example, the settlors could be parents or grandparents wanting to protect their assets for the benefit of their children or grandchildren.

The trustee is the person who manages the trust. This can be the settlor or another party could be appointed, such as a professional adviser.

The beneficiary is the party or parties who will benefit from the trust. For example, grandparents can place assets into a trust for their grandchildren’s university education. They may choose the child’s parents to be the trustees. While the beneficiary is usually a ‘natural person’ or persons, it is possible for organisations to benefit such as companies and charities.

The benefits of using a trust

There are many reasons that people consider putting assets into trust.
The reasons may relate to the protection of the beneficiary. For instance, you may choose to set up a trust to support the beneficiary because they cannot manage their finances due to their age or physical or mental incapacity.

Other reasons may revolve around protecting the assets themselves. Once an asset is held in trust, it belongs to neither the settlor nor the beneficiary. It can, in certain circumstances, be protected from external threats and claims to the assets arising from bankruptcy, legal action or relationship breakdown and family disagreements, provided recovery proceedings have not already commenced.

Using trusts for estate planning and asset management, among consideration of other potential tax planning options, can be a way in which you can manage your tax liabilities while still keeping assets within the family.

There may also be circumstances where a trust can ring-fence and shield assets from inheritance tax liability or an assessment of assets should you be taken into long-term care. However, setting up a trust purely for that purpose may be seen as a deprivation of assets and in such circumstances, your home may still be included in any assessment of assets for this purpose.

To ascertain whether a trust offers the most appropriate or effective option for your needs, it’s important to be clear on what your financial objectives and requirements are.

Common types of trust

There are a number of different types of trust, all of which have different tax implications and benefits to a settlor. In brief, the most common types of trusts are:

Bare Trusts: The assets are held in the name of the trustee. The beneficiary, however, has the right to all of the capital and income at any time, as long as they are over the age of 18. This is a simple trust that can be used to ensure young children don’t get access to large sums of money before they are ready! Transfers to a bare trust may be exempt from inheritance tax as long as the settlor lives for seven years post transfer.

Interest in possession Trusts: The beneficiary is entitled to the income as it arises, but not the assets itself. These trusts are often used where there has been a divorce and a remarriage, but ultimately the wish is for some assets to go to the children from the original relationship. After the settlor dies, the current spouse will have the benefit of the income and possession of the property (in the case of a house), but after their death, the asset will be passed to the children. In certain circumstances, this type of trust can protect your house from being sold to fund care home fees. You may also avoid paying inheritance tax while the asset remains in trust and remains the ‘interest’ of the beneficiary.

Discretionary Trusts: As its name suggests trustees of these types of trust can make decisions about how to use the trust income, and sometimes the capital. This will all be in accordance with the trust deed. Trustees may be able to decide who gets paid out; which beneficiaries to make payments to; how often payments are made and any conditions to be imposed. These are more flexible and are commonly used when the future needs of the beneficiary are uncertain – so they are often used in the case of grandchildren who may have different demands, or where the beneficiary lacks capacity through age or otherwise, and needs the trustees to make decisions about the funds. They can also be used to benefit you, as the settlor. For instance, if you were unable to work due to illness, a discretionary trust could be used to ensure that you have money in the future.

Mixed Trusts: As the name suggests these trusts are a combination of more than one type of trust. They enable your trust to meet a wide variety of needs and are taxed according to the tax rules that apply to each different part.

Accumulation Trust: These trusts allow the trustees to accumulate the income, instead of paying it all out and add it to the capital. Often termed maintenance trust, the power to accumulate the assets is available until a certain date, usually when the beneficiary reaches a certain age, when they then become entitled to the full income.

You can also have mixed trusts and specific trusts for children and vulnerable people. These trusts are subject to special treatment in terms of the tax rules, and professional advice as to the benefits of them should be sought.

The drawbacks of using trusts

The drawbacks of trusts will differ depending on the type that most suits your needs.

While trusts are a useful option for estate planning and asset protection, they mean that you no longer own the asset, so you will no longer be able to dispose of it as you may like, should your life take an unexpected turn.
Some trusts have been hit with sharp tax increases making any potential savings in inheritance tax minimal. It is also important to understand whether transferring assets into and out of trusts will give rise to tax liabilities such as capital gains tax.

Other types of trust will make it impossible for you to access the asset or the income and make it less easy to respond to personal changes in circumstances as ownership of your asset no longer rests with you. They also create administrative duties for the trustees.

Legal advice should be taken to ensure you proceed with the most appropriate type of trust for your requirements, and to draw up the trust deed itself.

What steps do I need to take to set up a trust?

Trusts are complicated; it is essential that they are the best option for your needs and that you select the right type to achieve the outcome that you want .

The trust must also be set up and administered correctly to be effective, which means consulting a solicitor.  To save time and costs, it is helpful to consider the following information before any meeting:

1.    Which assets to include;
2.    Who the trustees are;
3.    What powers they will need to achieve your aim;
4.    Who the beneficiaries are.

This will make any meeting with a solicitor more focused and efficient.  They will be able to recommend the correct type of trust for you to help achieve your goals.

Why you should seek legal advice.

Given the potential financial and tax implications following the setting up of a trust, obtaining professional advice as soon as possible is highly recommended to ensure the suitability of the trust in meeting your needs and that an effective trust deed is drawn up.

Guide to Legal Remedies

Legal remedies are the means with which a court of law, in a civil law context, enforces a right, provides compensation or makes some other court order as a means of resolving a contractual, tortious or other type of dispute. Such remedies can generally be divided into two categories: legal and equitable.

Legal remedies allow the innocent or aggrieved party to recover damages. In contrast, equitable remedies provide a non-monetary solution to resolving a dispute. Equitable remedies are typically granted when compensation cannot adequately resolve the wrongdoing. 

This article examines the legal remedy of damages available to the court in the context of both contract and tort law, in particular the general principles relating to the recovery of damages. We also touch upon the two main equitable remedies that may be prescribed in a contractual or tortious context.


Damages represent the principal legal remedy available in contract and tort law, the purpose of which is compensatory. In short, damages are an award of money to compensate the innocent or aggrieved party for any breach or wrongdoing.

The overriding aim of an award of damages arising from a breach of contract is to put the innocent party, so far as money can do it, in the position he would have been in had the contract been properly performed. In contrast, damages awarded in respect of a wrongful or negligent act is to put the injured party in the position he would have been in had the tort not occurred.

In either context, there are various different legal principles that will determine whether or not a claimant will be successful in recovering damages, in particular causation, remoteness and mitigation.


Causation is a principle used in the assessment of damages for both breach of contract or tort. To claim contractual or tortious damages, the claimant must first prove, on a balance of probabilities, that the breach of contract or duty actually caused the loss complained of.

In establishing whether or not there is a a causal connection between the breach and the loss sustained, the courts will apply the “but for” test. In other words, if the loss would have happened in any event, then the breach could not be said to have caused the loss.

Factors that may require special consideration are whether or not there are multiple causes of the damage, and/or whether there have been intervening acts contributing to or exacerbating the damage.


Remoteness is a principle used to determine legal causation. This is different from factual causation that examines whether the damage actually resulted from the breach. Once factual causation has been established, it is necessary to ask whether the law is prepared to attribute the damage to the particular breach of contract or duty, notwithstanding the factual connection. 

Damage that is too remote is not recoverable, even if there is a causal link between the breach and the loss. In breach of contract claims, remoteness comprises a two-limb test: first, whether the loss arises naturally from the breach and, second, whether the loss was within the reasonable contemplation of the parties as being a consequence of the breach at the time they entered into the contract.

In applying the test of remoteness in a contract claim, the court may also look to whether or not the defendant can be said to have assumed responsibility for the type of loss in question.

In tort law, in particular negligence and nuisance, the test for remoteness of damage is whether the kind of damage suffered was reasonably foreseeable by the defendant at the time of the breach of duty. Provided that the kind of damage is reasonably foreseeable, it does not matter that the way in which the wrongdoing was inflicted or its extent was unforeseeable. 


Mitigation refers to the duty upon the claimant to minimise his/her loss and to avoid taking unreasonable steps that increase that loss. An injured party cannot recover damages for any loss, whether caused by a breach of contract or breach of duty, which could have been avoided by taking reasonable steps. 

Whilst the duty to mitigate is not an actionable breach of duty, any failure to mitigate loss will impact on the level of damages recoverable. However, in mitigating any loss, the claimant is only required to act reasonably.

Equitable remedies

Damages may not always be an adequate remedy or, indeed, an appropriate one. This may be the case in the context of an anticipatory breach of contract, ie; where the contract has not yet been breached but action is proposed that will amount to breach, or where legal intervention is necessary to prevent a future tortious wrong. In such circumstances, it may be more appropriate to seek some form of equitable remedy, in addition to or in lieu of any claim for damages.

There are two main equitable remedies available to the court: injunctions and specific performance. Unlike damages, which are available as of right, these equitable remedies are granted at the court’s discretion. 


An order for injunctive relief may be mandatory or prohibitory. The former requires a party to do something, whilst the latter stops a party from doing something. The courts are typically more willing to grant prohibitory injunctions, restraining a party from taking a certain step, than they are to order mandatory injunctions, which would require the taking of action.

Injunctions can be ordered on an interim basis, effectively preserving the status quo until the underlying dispute between the parties can be resolved. They can also be ordered on a final basis.

In contractual disputes, injunctions are commonly used to restrain a respondent from dealing with or disposing of property until a disputed issue has been determined. In tortious claims, injunctions are most commonly used in the torts of nuisance and trespass to prevent further wrongdoing.

Specific performance

An order for specific performance may, in limited circumstances, be an appropriate alternative remedy to damages in a contractual dispute. Specific performance compels a party to perform its contractual obligations. This can include, for example, requiring the breaching party to deliver goods that have already been paid for or to render payment for services already received.

The courts are, however, often reluctant to order a party to unwillingly perform their contractual obligations. Accordingly, in considering whether to grant specific performance the court will look closely to whether damages would be an adequate remedy in the context of the particular type of contract. By way of example, the court would be unlikely to order specific performance of a contract for personal services. 

The court will also look to whether there is any bar to equitable relief, for example, whether the claimant’s own conduct has in some way been improper and, as such, whether or not the claimant has come to court with “clean hands”.

For an in-depth look at legal remedies 

The topic of legal remedies is a highly complex and substantial area of law. This article provides only an overview of some of the legal principles involved. For detailed guidance on legal remedies students should refer to specific texts or analysis on the subject, with reference to any statutory provisions and all recent and leading case law. 

Legal disclaimer

The matters contained in this article are intended to be for information purposes only. This article does not constitute legal advice and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought. 

Law of Evidence – What is it?

The law of evidence encompasses the rules and legal principles that govern the proof of factual matters in both criminal and civil proceedings. It is the evidence that helps the parties prove or disprove their case and, in turn, assist the court in fairly determining the outcome of those proceedings.

Below we examine the different types of evidence that may be used in both criminal and civil proceedings, together with an overview of some of the legal principles that provide the foundations underpinning the law of evidence.

What constitutes evidence?

Under the law of evidence, there are several different types of evidence that may be used in both criminal and civil proceedings. These include:

  • oral evidence – this is the spoken testimony of a lay or expert witness given in open court, usually on oath or affirmation. For the lay witness, the evidence is limited to their own knowledge of the facts, rather than conjecture, and is put forward as the truth of its contents. The expert witness, on the other hand, may provide their professional opinion on a particular issue to assist the court in its determination of that issue.
  • written evidence – this is the written testimony of a lay witness, usually signed with a statement of truth. It can also include the written report of an expert, such as a medical, forensic or handwriting expert. Typically, oral evidence will be given to corroborate a written statement or report.
  • documentary evidence – this is any document or written record, such as a contract, letter, diary or incident report. It can also include transcripts of telephone calls, as well as digital records of communications, such as text messages or emails. Typically, documentary evidence will be exhibited to a written statement or report, either by the author of the document in question, or by an individual able to verify or explain its contents.
  • real evidence – this is tangible evidence in the form of some kind of material object. This includes DNA evidence, such as hair or blood samples, typically used in conjunction with an expert’s report. It can also include CCTV footage, still photographs, and voice or video recordings. It is produced before the court for inspection, either to prove that it exists, or so that the court can draw an inference as to its condition or value.

The legal principles of the law of evidence

In any legal proceedings, both criminal and civil, the parties must produce evidence in support of their case to prove or disprove the matters in dispute. Accordingly, in the absence of sufficient evidence their case is likely to fail.

However, there are various rules and legal principles within the law of evidence that govern, for example, which party bears the burden of proof and to what standard. There are also rules as to the admissibility and weight to be attached to the evidence. Below, we address each of these legal principles in turn.

Burden of proof 

The burden of proof refers to the obligation placed upon a party to prove or disprove a disputed matter. Generally speaking, the burden of proof lies with the party bringing the action. For example, in criminal proceedings, the duty is on the prosecution to prove the elements of any offence. In a civil case, it is typically the claimant who is charged with the burden of proving his/her claim.

The burden of proof may shift, however, depending on the particular defence raised. By way of example, the onus in proving a plea of insanity rests with the defendant charged with a criminal offence. In a civil context, the evidential burden, at the very least, may shift to the defendant when pleading and proving an allegation of fraud.

Standard of proof

The standard of proof refers to the strength of the evidence required to prove a disputed fact or issue. In a criminal trial, the prosecution must prove the elements of any offence “beyond a reasonable doubt”, ie; so that the jury is sure of the defendant’s guilt. In contrast, a claimant bringing a civil claim must only prove their case on a “balance of probabilities”, ie; so that the judge is satisfied that the matters in dispute are more likely than not.

In a criminal context, the higher standard of proof leans very much in favour of the defendant. Given the serious nature of any criminal conviction, it is deemed preferable that some guilty go free, rather than any innocents be convicted. Similarly in civil cases, the more serious the allegation, the stronger and more cogent the evidence should be before a court determines that, on the balance of probabilities, the matters in dispute are proven.

Admissibility of evidence

In both criminal and civil proceedings, under the law of evidence any statement, testimony, document, or other evidence that is relevant to an issue in dispute, is potentially admissible. This includes issues of fact, as well as any issues that may affect the reliability or credibility of a witness or the evidence.

However, the question of admissibility of evidence is also subject to any common law or statutory rules on exclusion. By way of example, evidence may be wholly excluded in criminal proceedings if it has been obtained illegally, improperly or unfairly, such as during an unlawful police search.

In criminal proceedings there are also special rules under the law of evidence relating to the admissibility of confessions, evidence of the defendant’s bad character and hearsay evidence (as defined below). This type of evidence can have an adverse effect on the fairness of proceedings such that, in many cases, it ought not to be admitted. In circumstances where such evidence is not ruled inadmissible, various procedural requirements will need to be satisfied as a means of redressing any imbalance.

Weight of evidence

Under the law of evidence, once a statement, testimony, document or other piece of evidence has been admitted, the court must then determine its’ probative value in determining the issues in dispute. Accordingly, the court will take into account a number of factors. These include the nature of the evidence and whether it can be corroborated, from where the evidence originates, and how credible and reliable that source can be regarded.

In both criminal and civil proceedings, hearsay evidence is typically regarded as inherently unreliable because it is evidence not given under oath and without any opportunity for this evidence to be tested under cross-examination. Hearsay evidence is where a witness in proceedings seeks to give evidence of a particular fact on the basis of what was said to him or her by a third party. Accordingly, very little weight will be attached to this type of evidence in determining whether the requisite standard of proof has been satisfied. 

Similarly, in the absence of direct or corroborative evidence, the court is unlikely to attach any weight to circumstantial evidence. This is evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter can be reasonably inferred.

For an in-depth look at the law of evidence 

The law of evidence is a highly complex and constantly evolving area of law. This article provides only an overview of some of the legal principles encompassed by the law of evidence in the context of both criminal and civil proceedings.  For more detailed guidance, students should refer to specific texts or analysis on the subject, with reference to current statutory provisions and recent case law. 

Legal disclaimer

The matters contained in this article are intended to be for information purposes only. This article does not constitute legal advice and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.