CIVIL PROCEEDINGS: BURDEN AND STANDARD OF PROOF

Transcription

1 CIVIL PROCEEDINGS: BURDEN AND STANDARD OF PROOF ISBN Author: Nasser Hamid Binding: Softcover The law is stated as of January INTRODUCTION 1 ACCOUNTS 1 CARRIAGE OF GOODS BY SEA 35 CAVEATS 40 CITIZENSHIP 49 COMMITTAL ORDER 54 CONTEMPT 56 COMPANIES 92 CONTRACT 99 CONVERSION 110 CRIME 119 CUSTOMARY RIGHTS 120 DAMAGES 123 DEFAMATION 126 DOMICILE 144 DOCUMENTARY EVIDENCE 147 DISCIPLINARY PROCEEDINGS 154 EASEMENTS 173 ELECTIONS 178 EMPLOYMENT 190 DISMISSAL 197 EVIDENCE 211 FALSE DOCUMENTS 212

2 FAMILY LAW 215 FORGERY 261 FRAUD 291 FRAUDULENT MISREPRESENTATION 332 INSURANCE 337 IMMIGRATION 351 INCOME TAX 353 INDUSTRIAL INJURY 359 INEVITABLE ACCIDENT 361 INFERENCE 371 INJUNCTIONS 373 INTEREST 384 INTERIM PAYMENT 386 ISLAMIC LAW 390 LANDLORD & TENANT 394 MALICIOUS PROSECUTION 414 MEDICAL NEGLIGENCE 418 MILITARY PROCEEDINGS 437 MONEYLENDING 438 NEGLIGENCE 441 PERFORMANCE BOND 447 POLLUTION 450 PROFESSIONAL CHARGES 452 RECTIFICATION 454 SECURITIES 461 SHIPS 464 SIGNATURE 466

3 SUBMISSION 468 TORT 471 TRADEMARKS 483 TRUST 497 UNDUE INFLUENCE 506 WILLS 518 WITHDRAWAL OF MONEY 528 WRIT 530 Subject Index 535 CONTENTS INTRODUCTION 1 Law of Evidence 3 Rationale for a Higher Standard of Proof 6 Standard of Proof in Civil and Criminal Cases 7 Proof Beyond Reasonable Doubt - Meaning of 7 Standard of Proof required in Civil Cases - Balance of Probabilities 8 Facts in a Civil Proceeding which constitute a Crime 9 Standard of Proof - Interference by Appellate Court 9 Burden of Proof 10 Burden of Proof Meaning of 11 Burden of Proof and Onus of Proof 13 Evidential Burden Meaning of 14 Distinction between the Legal Burden of Proof and the Evidential Burden of Proof 15

4 Prima facie - Meaning of 16 Onus of Proof Relevance of 17 Burden and Onus of Proof Difference 18 Proof - Disproved - Meaning of 19 Proved Meaning of 21 Shifting of Burden Disproving the Plaintiff s Case 21 Maximum Evaluation - Minimum Evaluation - Credible Evidence Meaning of 25 Presumptions 26 ACCOUNTS 1 Directors and Receivers Respective Obligations 31 Duties & Responsibilities of Receiver - Agency of a Receiver 31 REQUEST FOR ACCOUNTS 32 CARRIAGE OF GOODS BY SEA 35 Bill of Lading 35 BILL OF LADING 36 CAVEATS 40 Purpose of a Caveat 40 Caveats - Onus of Proof 40 REMOVAL OF CAVEAT 41 SETTING ASIDE CAVEAT 46 CITIZENSHIP 49 COMMITTAL ORDER 54 SERVICE 54 CONTEMPT 56 Law of Contempt 56 Contempt Test to be Applied 57 Standard of Proof 58

5 Burden and Standard of Proof Test to be Applied 60 Burden of Proof - Reversal of Burden - Whether there had been a Reversal of the Burden 62 Strict Proof Contempt by Judicial Officer 63 Contempt of Order of Court 64 INJUNCTION 64 Disobedience to Injunction Order INTERIM PROHIBTORY ORDER 76 MANDATORY INJUNCTION 79 MAREVA INJUNCTION 80 SENTENCING 82 FINE 82 SERVICE 86 SHIPPING 89 COMPANIES 92 DEFRAUDING CREDITORS 92 CONTRACT 99 COLLATERAL CONTRACT 99 CONSPIRACY TO INJURE 100 RECTIFICATION 105 Common and Continuing Intention Burden of and Standard of Proof 105 CONVERSION 110 Conversion Meaning of 110 Cheques & Conversion 111 CHEQUE 111 SHARE SCRIPTS 114 CRIME 119 CIVIL PROCEEDINGS 119

6 CUSTOMARY RIGHTS 120 DAMAGES 123 Action for Damages Proof 123 BUILDING CONTRACT 124 DEFAMATION 126 Law of Defamation 126 Defamatory Meaning of 135 Libel Meaning of 138 Burden and Standard of Proof 139 JUSTIFICATION Defence of Justification Standard of Proof DOMICILE 144 DEBTOR 145 Law as to Proof of Change of Domicile 145 DOCUMENTARY EVIDENCE 147 Oral Evidence of the Contents of a Document 147 GUARANTEE 147 DISCIPLINARY PROCEEDINGS 154 Conflict of Interests Solicitors and Accountants 154 ACCOUNTANT 154 Professional Misconduct 156 ADVOCATE & SOLICITOR 157 ADVOCATE & SOLICITOR DISCIPLINARY PROCEEDINGS 160 ADVOCATE & SOLICITOR 163 Misconduct Disciplinary Enquiry - Standard of Proof 163 ADVOCATE AND SOLICITOR 165 ADVOCATE & SOLICITOR 167

7 EASEMENTS 173 Implied Reservation of Easement 173 ELECTIONS 178 Election Laws and Regulations English in Origin 178 CONDUCT OF ELECTIONS 179 CORRUPT PRACTICE Credibility of Witnesses Assessment by Trial Judge Principles of Interference 187 EMPLOYMENT 190 The Industrial Court and Evidence 190 Industrial Court - Proper Standard of Proof 191 Technicalities and Standard of Proof 191 Findings of Fact by Industrial Court and Interference by Court 192 Error of Law 193 Misdirection on Burden of Proof - Error of Law 194 Misconduct or Irregularities of Employee - Function of the Industrial Court 194 Technical Rules of Evidence 195 Judicial Review of Administrative Decision 195 Function of High Court during Judicial Review of Industrial Court Decision 196 DISMISSAL 197 Dismissal Just Cause or Excuse - Reasonable Grounds for Dismissal 197 Reasonable Suspicion 197 Dismissal - Just Cause or Excuse Duty of Industrial Court 198 Dismissal Cases - Employer bears the Burden of Proof 198 Standard of Proof v Threshold Issue of Validity or Charges 198 STRIKE 200 THEFT 200 Dismissal Dishonest Act of Employee 200

8 THEFT 208 THEFT 209 VICTIMISATION 210 EVIDENCE 211 FABRICATION OF EVIDENCE 211 FALSE DOCUMENTS 212 DELIVERY NOTE AND INVOICE 212 FAMILY LAW 215 Adultery - Serious Matrimonial Offence 215 Adultery Standard of Proof 215 Burden of Proof of Adultery 217 Damages for Adultery 217 Assessment of Damages against an Adulterer Applicable Principles 217 Damages are Compensatory and not Punitive 217 Cruelty Meaning of 219 Condonation Meaning of 219 Domicile - Meaning of 220 Change of Domicile Standard of Proof 221 Adultery Proceedings Costs 221 ADULTERY ADULTERY DAMAGES CRUELTY DOMICILE FOREIGN DECREE 254 FORGERY 261 Proof of Forgery in Civil Proceedings 261 Forgery of Cheques 261

9 Expert Evidence - Object of 262 Handwriting Expert 262 ACCOUNT APPLICATION FORM 262 CHEQUES 272 GUARANTEE 272 PAYMENT VOUCHER 275 POWER OF ATTORNEY 278 SHARE TRANSFER FORMS FRAUD 291 Fraud Meaning of 291 Honesty Meaning of 291 Sham 291 Specific Pleadings 292 Sufficient Particulars of Fraud 292 Question of Fact 293 Examination of Evidence 294 Fraud - Burden of Proof 294 Standard of Proof of Fraud in Civil Cases 295 Fraud -Standard of Proof in Singapore 302 BANKING 303 BANKRUPTCY 305 COMPANIES 306 CONTRACT 308 LAND 309 Fraud & Indefeasibility 309 FRAUDULENT MISREPRESENTATION 332

10 Burden and Standard of Proof 332 BILL OF LADING 333 LETTER OF UNDERTAKING 334 INSURANCE 337 Insurance and Fraud 337 Fraudulent Claim - Proof of Fraud - Whether Claim was Fraudulent 337 FIRE INSURANCE 339 LIFE INSURANCE DEATH OR SUICIDE 344 NON-DISCLOSURE OF MATERIAL FACT 345 NON-DISCLOSURE OF MATERIAL FACT FRAUD 347 IMMIGRATION 351 INCOME TAX 353 INDUSTRIAL INJURY 359 INEVITABLE ACCIDENT 361 Res Ipsa Loquitur Meaning of 361 Establishing the Defence of Inevitable Accident Burden of Proof 362 DEFENCE 363 LATENT DEFECT 366 INFERENCE 371 MOTOR ACCIDENT 371 INJUNCTIONS 373 FRAUD 373 MAREVA 373 MAREVA INJUNCTION DEFAMATION 374 Winding up 378 WINDING UP INTEREST 384

11 INTERIM PAYMENT 386 Nature of Order 22A 386 PERSONAL INJURIES 388 ISLAMIC LAW 390 MATRIMONIAL HOME 390 WILL 391 LANDLORD & TENANT 394 CONTROLLED PREMISES 394 ILLEGAL OR IMMORAL PURPOSES 396 ILLEGAL ACTIVITIES 405 REPAIR 408 SUBLETTING 411 MALICIOUS PROSECUTION 414 Action for Malicious Prosecution Burden of Proof 414 MEDICAL NEGLIGENCE 418 Law of Medical Negligence 418 Bolam Test 418 Doctor s Evidence Value of 419 Medical Care Standard of Care 419 Charge of Negligence against Professionals 420 Burden of Proof of Causation 420 CAUSATION 421 ADVICE 424 ADVICE 430 MILITARY PROCEEDINGS 437 MONEYLENDING 438 NEGLIGENCE 441

12 Onus of Proving Negligence 441 Burden of Proof 442 Failure to Establish Negligence 443 OCCUPIER 444 Duty of Care - Duty of Care of Occupier 444 ONUS OF PROOF 444 Negligence Onus of Proving Negligence 444 ONUS 446 Plaintiff s Onus Evidence at Trial Evidence in Support 446 UNUSUAL DANGER 446 Onus of Proving Unusual Danger 446 PERFORMANCE BOND 447 FRAUD 447 POLLUTION 450 PROFESSIONAL CHARGES 452 RECTIFICATION 454 SECURITIES 461 SHIPS 464 SIGNATURE 466 SUBMISSION 468 TORT 471 CONSPIRACY TO DEFRAUD 471 Standard of Proof 471 INDUCEMENT TO BREACH 472 TRADEMARKS 483 FIRST USER 483 Standard of Proof 483

13 FRAUD 491 TRUST 497 EXISTENCE OF TRUST 497 Standard of Proof 497 Existence of Trust Standard of Proof 504 UNDUE INFLUENCE 506 Undue Influence in Equity/Contract 506 Presumption of Undue Influence 506 Presumption of Undue Influence based on the Relationship of Employer-Employee 506 Consequences of Undue Influence 508 CONTRACT 508 LOAN AGREEMENT 512 WILLS 518 WITHDRAWAL OF MONEY 528 FRAUDULENT WITHDRAWAL OF MONEY 528 WRIT 530