Emmanuel v Avison & Ors

On an appeal involving disputed signatures, a court may resort to the burden of proof only after an unsuccessful examination and evaluation of the evidence. The civil standard remains whether something is more probable than not, although the cogency of evidence required depends on the inherent probabilities. The legal burden ordinarily rests on the party asserting the relevant fact as part of a claim for relief. That allocation is not altered merely because the opposing party would bear the burden in different enforcement proceedings. An appellate court should scrutinise findings with particular care where judgment was substantially delayed, but the appellant must identify an error or a finding rendered unsafe by the delay.

The appellant appealed from an order of HHJ Hand QC dated 31 October 2019, following a judgment dated 24 May 2019 in the County Court at Central London. She sought declarations that signatures on a loan agreement and legal charge were forged, that she was not indebted under the agreement, and alteration of the register concerning her property.

The trial judge found the evidence inconclusive, placed the burden of proof on the appellant, and dismissed the claim. The appeal challenged the effect of delay, the resort to the burden of proof, the allocation and standard of proof, and alleged deficiencies in the fact-finding and reasoning.

1. Appeal dismissed. The trial judge’s decision was open to him on the evidence and no material error was established.
2. Delay in producing judgment does not by itself justify allowing an appeal. It requires the appellate court to scrutinise the findings with special care because the trial judge’s advantage in assessing facts may be weakened. The appellant must nevertheless identify particular findings that are open to question because of the delay. The court applied the approach discussed in Bond v Dunster [2011] EWCA Civ 455 and Tex Services v Shibani [2016] UKPC 31.
3. A judge should resort to the burden of proof only after attempting, unsuccessfully, to resolve the factual issue through examination and evaluation of the evidence. Appellate intervention is justified only where the nature of the case or the judge’s reasoning shows that a finding could reasonably have been made without resort to that burden. The judge had correctly stated that law and had properly applied it.
4. The civil standard is unvarying: the question is whether the fact is more probable than not. Its application may require more cogent evidence where the proposition is inherently improbable.
5. The general rule that the party who asserts must prove applied in its simplest form. Because the appellant brought a claim for declarations and alteration of the register, she bore the burden of proving that the signatures were forgeries and that she was not indebted. The fact that the respondents would have borne the burden of proving execution in enforcement proceedings did not alter the burden in this claim. A notice to prove documents under r 32.19 did not shift the legal burden.
6. The court considered the sixteen alleged deficiencies individually and then in the round. The trial judge had engaged with the evidence, made findings open to him, and was entitled to regard the evidence as leaving both impersonation and attendance at the meeting equally possible. The appeal was therefore dismissed.

• High Court (Chancery Division): On appeal from the County Court at Central London order of HHJ Hand QC dated 31 October 2019, the appeal was dismissed.