A judge was entitled to determine a case on the basis of burden of proof where the evidence was mainly hearsay, the Court of Appeal has held, in a case where a nephew evicted his elderly uncle from his home.
Constandas v Lysandrou and others [2018] EWCA Civ 613 concerned a dispute over a house, bought in 1959 and registered in the first defendant’s name, in which the parties had lived since the claimant moved in with the defendants after his marriage broke down in 1973. In 2015, the claimant’s nephew, acting under power of attorney, evicted him, dumping his belongings in black binliners on the street.
The claimant then asserted his beneficial ownership of the house. The claimant said he contributed half the purchase price of the house, £600. However, the evidence was mainly hearsay. Two of the defendants, the claimant’s sister and brother-in-law, suffered dementia. Moreover, the claimant was not considered a reliable witness.
The Court of Appeal upheld the judge’s decision to dismiss the claim on the basis the claimant had not discharged the burden of proof.
In an interview for Lexis PSL Dispute Resolution, barrister Sarah Steinhardt, of Doughty Street Chambers, said the case ‘emphasises that it is only in exceptional cases that a judge will be unable to make a finding on a disputed issue, and therefore have to resort to the burden of proof.
‘Usually where there is conflicting evidence, the judge’s task is to decide the case by making a choice based on a comparison of the evidence and to describe the factors that led to that choice. It is only in exceptional circumstances, such as where there is a lacuna in the evidence, that this will not be possible’.
The Court of Appeal also declined to interfere with the judge’s order that the claimant not pay the defendant’s costs.
Steinhardt said this was ‘perhaps the most significant part of the judgment in practical terms’.
‘This was a case in which, given the paucity of clear-cut documentary evidence, credibility was inevitably going to be an important issue,’ she said.
‘But at trial, the judge took a very dim view of the conduct of the defence in using confidential documents against the claimant. The judge also rejected the defendants’ argument that the claimant had assaulted the first defendant, and that he had only started asserting a right over the property after he was given notice to quit.
‘This should perhaps serve as a warning to representatives in cases where credibility is in issue that “all out” attack on the character of another party or witness may put a client at costs risk if the allegations are not made out. Likewise, whatever a party is legally entitled to do, a judge is entitled to take the view that a party’s conduct is so unreasonable or blameworthy on a moral level that, despite their success in law, they should be deprived of their costs.’
