Daley v Bakiyev

In a civil claim alleging that an attempted murder was arranged by the defendant, the claimant bears the ordinary burden of proving the allegation on the balance of probabilities. The seriousness of the allegation affects the inherent probabilities and the strength of evidence required, but does not create a heightened standard of proof.

Hearsay must be assessed under Civil Evidence Act 1995, section 4, by reference to all circumstances bearing on reliability. The court must evaluate the evidence as a whole and test allegations of fraud against objective documents, motives and overall probabilities. Foreign criminal convictions and their factual findings are generally inadmissible as proof of the facts found. The claim was dismissed because the evidence did not establish the defendant’s involvement.

The claimant, a British businessman working for Oxus Gold in Kyrgyzstan, claimed damages for injuries sustained when he was shot outside his home in Bishkek in July 2006. He alleged that the defendant, the son of the then President of Kyrgyzstan, had organised the shooting to protect interests connected with the Jerooy gold-mining licence.

The defendant denied involvement and denied any financial interest in the mine or Global Gold. The court considered disputed hearsay, foreign criminal proceedings, evidence concerning the licensing arrangements, alleged motive and propensity, and limitation. The central issue was whether the claimant had proved that the defendant organised and arranged the shooting.

1. Claim dismissed. The claimant failed to establish that the defendant organised or arranged the shooting.
2. The applicable standard was the balance of probabilities. The seriousness of the allegation was relevant only to the assessment of inherent probability and the strength of evidence required; it did not impose a different standard.
3. Hearsay was assessed under section 4 of the Civil Evidence Act 1995. The court considered the absence of the principal witness, the lateness and circumstances of the statements, possible motives to misrepresent, possible collaboration in obtaining the evidence, and the inability to test the evidence in cross-examination. The hearsay evidence was wholly unreliable and was given no weight.
4. In allegations of fraud, credibility should be tested against objective facts, documents, motives and overall probabilities. The court found that the claimant’s evidence did not reliably establish that the defendant had a financial interest in Global Gold, had solicited a bribe, or had a propensity to use lethal force for monetary gain.
5. The foreign conviction and findings of the Pervomaisky District Court were inadmissible as evidence of the facts found. The rule in Hollington v F. Hewthorn & Co. Ltd remained applicable, subject to statutory exceptions that did not cover foreign convictions. The court also rejected reliance on other non-expert findings.
6. The court found that the defendant had been more involved in the grant of the Jerooy licence than he admitted, and that the President had been involved in granting it. Those findings did not prove that the defendant arranged the shooting. The possibility of an unrelated motive could not be excluded, and it could not be inferred that the defendant was responsible merely because no alternative assailant was identified.
7. The limitation issue was unnecessary to decide. Had the claim succeeded on its merits, the court would have exercised the discretion under section 33 of the Limitation Act 1980 to disapply the primary period.

First-instance decision. No earlier appellate decision is stated in the judgment.