Stephens and Another v Cannon and Another: CA 14 Mar 2005

The claimants had purchased land from the defendants. The contract was conditional on a development which did not take place. The master had been presented with very different valuations of the property.
Held: The master was not entitled to resort to the burden of proof in the manner in which he did so. The appeal was allowed and the award of damages was aside. The valuation and price issue was remitted for rehearing.
Wilson J said: ‘(a) 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.
(c) The exceptional situation which entitles the court to resort to the burden of proof is that, notwithstanding that it has striven to do so, it cannot reasonably make a finding in relation to a disputed issue.
(d) A court which resorts to the burden of proof must ensure that others can discern that it has striven to make a finding in relation to a disputed issue and can understand the reasons why it has concluded that it cannot do so. The parties must be able to discern the court’s endeavour and to understand its reasons in order to be able to perceive why they have won and lost. An appellate court must also be able to do so because otherwise it will not be able to accept that the court below was in the exceptional situation of being entitled to resort to the burden of proof.
(e) In a few cases the fact of the endeavour and the reasons for the conclusion will readily be inferred from the circumstances and so there will be no need for the court to demonstrate the endeavour and to explain the reasons in any detail in its judgment. In most cases, however, a more detailed demonstration and explanation in judgment will be necessary.’


Auld, Arden LJJ, Wilson J


[2005] EWCA Civ 222, Times 02-May-2005, [2005] CP Rep 31




England and Wales


CitedRhesa Shipping Co SA v Edmonds (The Popi M) HL 16-May-1985
The Popi M sank in calm seas and fair weather as a result of a large and sudden entry of water into her engine room through her shell plating. The vessel’s owners claimed against her hull and machinery underwriters, contending that the loss was . .
CitedCooper v Floor Cleaning Machines Ltd and Another CA 20-Oct-2003
The judge had heard the evidence from two drivers involved in a road traffic incident. He had declared that he could find no way to prefer the evidence of one over the other. Accordingly neither had proved his or her case on the balance of . .
CitedSewell v Electrolux Limited CA 8-Oct-1997
There had been an accident at work the claimant suffered substantial back pain and the recorder had to decide whether it was caused by the accident or by a pre-existing condition. Orthopaedic surgeons gave conflicting evidence. Unlike the master in . .
CitedLloyds TSB Bank Plc v Hayward CA 12-Dec-2002
The parties disputed, inter alia, what had been agreed at a meeting. A note, prepared after the meeting, was claimed to record it. The judge had declined to make a finding in relation to the date when a note had been written, saying only that, since . .
CitedAshraf v Akram CA 22-Jan-1999
The parties had had a fight and claimed against each other for assault. The judge had to identify which party had started the fight. Having heard their evidence and that of the claimant’s son, the judge warned counsel that he could not decide the . .
CitedEnglish v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
CitedEmaco Limited, Aktiebolaget Electrolux v Dyson Appliances Ltd PatC 26-Jan-1999
A company which was using a competitor’s trade mark in the context of an advert, which made misleading and derogatory comparisons, failed the ‘honest practice’ test, and was abusing the rights to use the other company’s mark under the Act. In this . .

Cited by:

CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedPoint Solutions Ltd v Focus Business Solutions Ltd and Another ChD 16-Dec-2005
It was claimed that the defendant’s computer software infringed the copyright in software owned by the claimant. A declaration was sought beacause of allegations that assertions about infringement had been made to third parties.
Held: The . .
CitedVerlander v Devon Waste Management and Another CA 27-Jun-2007
Auld LJ commented on the analysis in Stephens of the need for a judge to decide the evidence before him: ‘Perhaps I can, without damage to that analysis, summarise it by reducing it to two main propositions. First, a judge should only resort to the . .
CitedBates v Malyon QBD 10-Oct-2008
The defendant had driven into the rear of the claimant’s car. The claimant appealed dismissal of his claim by the judge who said he had not discharged the burden of proof of negligence.
Held: The appeal failed. The judge had reached a . .
CitedBaxter v Mannion ChD 18-Mar-2010
B appealed against an order for rectification against him of the land register returning ownership to M. B had obtained registration with possessory title, claiming to have kept horses on the field for many years in adverse possession of it. M had . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 June 2022; Ref: scu.223584