Burden of Proof in Undue Influence: Common Law and Codes on Collision Course

AuthorDisa Sim
Date01 December 2003
Publication Date01 December 2003
(2003) 7 E&P 221–236
Burden of proof in undue
Common law and codes
on collision course
By Disa Sim
National University of Singapore, Faculty of Law
Abstract. Before the case of Royal Bank of Scotland v Etridge (No. 2), the modern
presumption of undue influence appeared to be a potent one that had to be
rebutted on a balance of probabilities. While it is clear from Etridge that the
House of Lords intended to curtail the force of the presumption, it is difficult
to determine the precise extent to which the presumption retains evidential
significance. This is because the House of Lords failed to indicate whether the
revised presumption was now one of law, casting the evidential burden upon
the alleged dominant party to disprove the finding of undue influence, or simply
one of fact, shifting the tactical burden. This is unfortunate because whether
the alleged dominant party bears the evidential or the tactical burden can
have a decisive effect on the outcome in borderline cases. This debate would be
inconsequential for jurisdictions whose codified evidence laws are based on
the work of Sir James Fitzjames Stephen if not for the fact that some courts
have hitherto erroneously assumed that there is no difference between the
codified and common law presumptions of undue influence. After Etridge, these
jurisdictions can no longer afford to make such an assumption and must grapple
with the interface between the common law presumption and its statutory
he case of Royal Bank of Scotland v Etridge (No. 2)1 presents two interesting
points of evidence law. First, while it is clear that the House of Lords
intended to limit the scope of the common law presumptions of undue
influence, it is diff icult to determine the precise extent to which the presumptions
retain any evidential significance. Secondly, the case has significant implications
for jurisdictions whose codified evidence laws are based on the work of Sir James
Fitzjames Stephen. While some of these jurisdictions appear to have hitherto
* I would like to thank Associate Professor Yeo Tiong Min for his invaluable comments and guidance.
All errors, however, remain mine alone.
operated on the basis that Stephen’s codification merely reflects the existing
common law presumptions of undue influence, Etridge may have now caused the
common law position to diverge significantly from the statutory one.
This article examines these issues in four parts. It begins with a brief survey of
the basic terminology that is employed in a discussion of the allocation of the
burden and standard of proof. The need for this arises because one of the major
sources of confusion in Etridge was t he court’s inconsistent use of evidential
terminology. The article then outlines the modern position on undue influence
before Etridge, before discussing the extent to which Etridge and its progeny have
diverged from that position. Finally, the extent to which the post-Etridge position
differs from Stephen’s statutory codification of the presumption of undue
influence is considered.
1. The burden of proof—basic terminology
When a litigant bears a ‘burden’ in a civil case, this could mean one of three
things. The litigant may bear what is known as the ‘legal’ or ‘persuasive’ burden,
in which case he or she is required to adduce sufficient evidence to convince the
court of the existence (or non-existence) of a fact in issue on at least a balance of
probabilities.2 In a typical case, it is the claimant who bears the legal burden of
making out his or her case.
Alternatively, the litigant may bear only the ‘evidential burden’ or the ‘burden of
production’, which means that he or she need only advance such evidence which
could, if believed, establish his or her contention on a balance of probabilities. He
or she is not required to adduce enough evidence of sufficient weight to convince
the trier of fact that his or her contention is true. While the same party normally
bears both the legal and the evidential burdens, different parties may bear the
two burdens in respect of the same issue in exceptional cases.3 The concept of the
evidential burden is best understood in the context of a jury trial.4 A failure to
discharge the evidential burden will result in the issue being withdrawn from
the jury because the evidence is not sufficient to make the existence (or non-
existence) of the fact in issue a legitimate question in the case. Merely preventing
the issue from being withdrawn, however, would not clinch the case. The jury
must still be convinced of the existence or non-existence of the fact in issue. This is
the task of the person who bears the legal burden. This is why it is sometimes
2 C. Tapper, Cross and Tapper on Evidence, 9th edn (Butterworths: London, 1999) 109.
3 Above n. 2 at 109–10.
4 Above n. 2 at 109.

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