Category: burden of proof

Proving and disproving discrimination – Cloisters

Posted January 29th, 2014 in burden of proof, employment, equality, harassment, news by sally

‘This talk looks at the legal and practical tools available to employment lawyers to prove or disprove direct discrimination and harassment, exploring in particular three areas:

a. How judges apply the burden of proof s136(2)(3) EA 2010
b. What is the role of Comparators in light of the Supreme Court decision of Hewage v Grampian Health Board [2012] ICR 1054, SC
c. What role does knowledge of the protected characteristic now play in light of IPC Media Ltd v Millar [2013] IRLR 707.’

Full story (PDF)

Cloisters, 14th January 2014

Source: www.cloisters.com

Litigation privilege did not apply to correspondence before litigation was “reasonably anticipated”, judge says – OUT-LAW.com

Posted January 24th, 2014 in burden of proof, financial advice, news, privilege by sally

‘A brewing company was unable to prevent correspondence between itself and its bank and accountants from being disclosed during a dispute connected with the sale of its eastern European business, a High Court judge has ruled.

Full story

OUT-LAW.com, 23rd January 2014

Source: www.out-law.com

Lord Rennard cleared of sexually harassing Liberal Democrat women and says he wants his job back – Daily Telegraph

Posted January 16th, 2014 in burden of proof, harassment, news, political parties, professional conduct, women by tracey

‘Lord Rennard has been cleared of sexually harassing Liberal Democrat party workers despite an independent review finding “broadly credible” evidence he “violated” the personal space of women.’

Full story

Daily Telegraph, 15th Janaury 2014

Source: www.telegraph.co.uk

Bias has ‘significant’ effect on verdicts, jury research says – Law Society’s Gazette

Posted January 10th, 2014 in bias, burden of proof, juries, news, verdicts by tracey

‘Jurors should be tested before trials to reduce the effect of prejudices on their understanding of the burden of proof, according to the authors of a study suggesting bias has a “significant” impact on verdicts.’

Full story

Law Society’s Gazette, 10th January 2014

Source: www.lawgazette.co.uk

Criminal compensation reforms would shift burden of proof on to victims – The Guardian

Posted October 14th, 2013 in bills, burden of proof, compensation, criminal justice, interpretation, judicial review, miscarriage of justice, news, victims by sally

“Victims of miscarriages of justice will have to prove their innocence in future or endure damaged reputations, human rights groups and Labour’s parliamentary frontbench are warning.”

Full story

The Guardian, 14th October 2013

Source: www.guardian.co.uk

Serious Organised Crime Agency v Azam – WLR Daily

Posted August 2nd, 2013 in appeals, assets recovery, burden of proof, costs, law reports, proceeds of crime by sally

Serious Organised Crime Agency v Azam [2013] EWCA Civ 970; [2013] WLR (D) 327

“Where a person who was the subject of a property freezing order made under Part 5 of the Proceeds of Crime Act 2002 applied for the order to be varied so as to permit him to apply some of his assets which were the subject of the order in paying for his legal expenses, he was under no specific burden of proof requiring him to prove that there were no other available assets which could be used for the relevant purpose, such that if he did not discharge the burden his application must fail.”

WLR Daily, 31st July 2013

Source: www.iclr.co.uk

Water, water everywhere… – NearlyLegal

Posted July 30th, 2013 in appeals, burden of proof, news, service charges, tribunals, valuation, water companies by sally

“There are those who say that service charges are a dry subject. To them I say, welcome to Wallace-Jarvis v (1) Optima (Cambridge) Ltd (2) Khazai [2013] UKUT 328 (LC).”

Full story

NearlyLegal, 29th July 2013

Source: www.nearlylegal.co.uk

R v Brown (Appellant) (Northern Ireland) – Supreme Court

Posted June 27th, 2013 in age of consent, appeals, burden of proof, consent, law reports, Northern Ireland, rape, sexual offences, Supreme Court, young offenders by sally

R v Brown (Appellant) (Northern Ireland) [2013] UKSC 43 | UKSC 2011/0233 (YouTube)

Supreme Court, 26th June 2013

Source: www.youtube.com/user/UKSupremeCourt

Suspected Jamaican rapist banned from UK for a decade as police employ new tactic – The Independent

Posted June 10th, 2013 in burden of proof, deportation, immigration, London, news, police, sexual offences by sally

“A suspected Jamaican sex-offender charged five times but never convicted for allegedly raping vulnerable women has been banned from Britain for a decade in a controversial new police tactic to target foreign criminals.”

Full story

The Independent, 7th June 2013

Source: www.independent.co.uk

Asociaţia ACCEPT v Consiliul Naţional pentru Combaterea Discriminǎrii – WLR Daily

Posted April 30th, 2013 in burden of proof, EC law, law reports, recruitment, sexual orientation discrimination, sport by sally

Asociaţia ACCEPT v Consiliul Naţional pentru Combaterea Discriminǎrii (Case C-81/12); [2013] WLR (D) 153

“Homophobic statements made by a person perceived as playing a leading role in a football club but who did not have legal capacity to bind it in recruitment matters were capable of constituting ‘facts from which it may be presumed that there has been … discrimination’ pursuant to articles 2(2) and 10(1) of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (OJ 2000 L303, p16).”

WLR Daily, 25th April 2013

Source: www.iclr.co.uk

Has The Golden Thread Finally Been Snapped? – Zenith Chambers

Posted March 21st, 2013 in burden of proof, case management, criminal justice, guilty pleas, judiciary, speeches by sally

“‘Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception

No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’

Per Viscount Sankey in Woolmington v DPP [1935] AC 462 – emphasis added.

There cannot be an English lawyer who is unaware of this paragraph in Viscount Sankey’s judgment in Woolmington. Many non-lawyers who have chanced to read the Rumpole stories will also be as aware of, if not as attached to, it.”

Full story (PDF)

Zenith Chambers, 19th March 2013

Source: www.zenithchambers.co.uk

Silence is not necessarily golden: the consequences of failing to adduce evidence in rebuttal in civil trials – Zenith Chambers

Posted March 6th, 2013 in burden of proof, evidence, news, witnesses by sally

“Gordon Exall considers the practical issues that arise from the principle that a court can draw adverse inferences from a party’s failure to adduce evidence on an issue.”

Full story (PDF)

Zenith Chambers, 12th February 2013

Source: www.zenithchambers.co.uk

Milton Keynes Borough Council v Nulty, decd and others – WLR Daily

Posted January 28th, 2013 in appeals, burden of proof, causation, fire, insurance, law reports, negligence by sally

Milton Keynes Borough Council v Nulty, decd and others [2013] EWCA Civ 15; [2013] WLR (D) 25

“There was no rule of law that if the only other possible causes of an event were very much less likely than one suggested means of causation, that became the probable cause; the court had to be satisfied on rational and objective grounds that the case for believing that the suggested means of causation occurred was stronger than the case for not so believing.”

WLR Daily, 24th January 2013

Source: www.iclr.co.uk

How UK libel laws undermined Sunday Times in Lance Armstrong case – The Guardian

Posted January 22nd, 2013 in burden of proof, defamation, drug abuse, media, news, sport by sally

“The legal battle with disgraced cyclist Lance Armstrong which cost the Sunday Times almost £1m after it suggested he took banned substances shows how difficult it is to pursue investigations under British libel laws, with the burden of proof heavily stacked against publishers, according to those who worked on the original stories.”

Full story

The Guardian, 22nd January 2013

Source: www.guardian.co.uk

Regina v Sadighpour – WLR Daily

Posted January 8th, 2013 in appeals, burden of proof, crime, defences, immigration, law reports by sally

Regina v Sadighpour [2012] EWCA Crim 2669; [2013] WLR (D) 4

“Section 31(7) of the Immigration and Asylum Act 1999 did not reiterate a requirement to satisfy an evidential burden, initially imposed by section 31(1) on a defendant in relation to refugee status, even when the Secretary of State had refused an asylum claim, and was apt to cover a situation where there had already been due consideration of the defendant’s claim to refugee status on the merits.”

WLR Daily, 11th December 2012

Source: www.iclr.co.uk

Tying ourselves into (Gordian) knots? – Thirty Nine Essex Street

Posted November 27th, 2012 in burden of proof, damages, deprivation of liberty safeguards, freedom of movement, news by sally

“This paper seeks to take a step back from the intricacies of the DOLS regime that we have learned to know and, at best (I sense) tolerate since it was introduced in April 2009. Rather, it seeks to re examine the fundamental question of what constitutes a deprivation of liberty for purposes of Article 5(1) ECHR in the context of those without capacity to determine their own residence and care/treatment arrangements.”

Full story (PDF)

Thirty Nine Essex Street, November 2012

Source: www.39essex.com

Ben Butler’s case reminds us the justice system is not infallible – The Guardian

Posted October 19th, 2012 in appeals, burden of proof, care orders, child cruelty, evidence, grievous bodily harm, news by sally

“Ben Butler, found to have shaken his seven week old baby in both care proceedings and criminal proceedings in 2008, has finally been declared an innocent man. Ben had taken his daughter Ellie to hospital after she had collapsed with breathing problems, but suspicion quickly fell on him when doctors believed the symptoms she displayed were conclusive evidence of shaking. Five years on, and the discovery of medical evidence that no one had previously seen, a high court judge has exonerated Ben of any wrongdoing.”

Full story

The Guardian, 18th October 2012

Source: www.guardian.co.uk

Hewage v Grampian Health Board – WLR Daily

Posted August 1st, 2012 in burden of proof, employment tribunals, law reports, race discrimination, sex discrimination, Supreme Court by sally

Hewage v Grampian Health Board [2012] UKSC 37; [2012] WLR (D) 235

“In considering a claim for discrimination in the employment tribunal, the statutory burden of proof provisions only required careful attention where there was room for doubt as to the facts necessary to establish discrimination.”

WLR Daily, 25th July 2012

Source: www.iclr.co.uk

Fecitt and others v NHS Manchester (Public Concern at Work intervening) – WLR Daily

Posted November 3rd, 2011 in appeals, burden of proof, employment, law reports, vicarious liability by sally

Fecitt and others v NHS Manchester (Public Concern at Work intervening) [2011] EWCA Civ 1190; [2011] WLR (D) 308

“A worker had been subjected to a detriment “on the ground that” he had made a protected disclosure, for the purposes of section 47B of the Employment Rights Act 1996, if the protected disclosure was a material factor in the employer’s decision to subject the employee to a detrimental act.”

WLR Daily, 25th October 2011

Source: www.iclr.co.uk

Ineos Healthcare Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Teva Pharmaceutical Industries Ltd, other party) – WLR Daily

Posted February 24th, 2011 in burden of proof, EC law, law reports, trade marks by sally

Ineos Healthcare Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Teva Pharmaceutical Industries Ltd, other party) (Case T-222/09); [2011] WLR (D) 53

“In opposition proceedings against registration of a trade mark pursuant to article 42 of Council Regulation (EC) No 40/94, the opposing party was not obliged to adduce evidence in support of the opposition. Whilst in relation to proceedings relating to relative grounds for refusal the Board of Appeal of the Office of Harmonisation in the Internal Market (Trade Marks and Designs) could take into account facts which were likely to be known by anyone or which might be learned from generally accessible sources, it was not, however, entitled to exceed the conditions governing examination set out in article 74 of Regulation 40/94.”

WLR Daily, 23rd February 2011

Source: www.lawreports.co.uk

Please note that once a case has been fully reported in one of the ICLR series the corresponding WLR Daily summary is removed.