How Judges Decide Questions of Fact

Vocabulary flashcards covering key terms, case law, and principles regarding how judges make findings of fact in civil litigation.

Credibility (in Witness Evidence)

The honesty and accuracy of a witness as evaluated by a trial judge during litigation.

Balance of Probabilities

The standard of proof in civil cases by which a judge decides disputed questions of fact based on which competing version of events is the more probable.

System of Precedent

The legal system operating in England and Wales where established legislation, caselaw, or legal textbooks set out what a claimant must prove to establish a cause of action or what amounts to a defence.

Inherent Probabilities

A key factor in judicial fact-finding where the judge evaluates which version of events is more likely by analyzing the context and actions of the parties before and after the disputed event or conversation.

Independent Witness

A witness who has no personal or financial interest in the outcome of the case, whose evidence consequently carries great weight in judicial fact-finding.

Contemporary Communications

Written or recorded exchanges (such as emails, texts, letters, minutes, or social media posts) made at the time of events, to which judges attach great importance because they are uninfluenced by impending litigation.

Contemporary Records of Actions

Retrievable objective evidence tracking movements and events, such as CCTV footage, telephone records, till receipts, and bank ATM records.

Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35

A House of Lords decision in which Baroness Hale affirmed that a trial judge is not allowed to sit on the fence on disputed issues of fact and must make a finding for one side or the other.

The Judge as Juror (1985)

An extra-judicial article by Sir Thomas Bingham (then sitting as a first-instance judge in the Commercial Court) addressing the basic themes and factors involved in judicial fact-finding.

Depp v News Group Newspapers Ltd [2021] EWCA Civ 423

A Court of Appeal decision illustrating that appellate courts rarely reverse trial judges' findings of fact because the trial judge saw and heard the witnesses and had a feel for the overall case.

Mitchell v News Group International Newspapers Ltd [2014] EWHC 4014 (QB)

A defamation trial in which Mr Justice Mitting found that the claimant used the word 'pleb' based on CCTV inconsistencies, previous statements of non-recollection, and un-fabricated contemporary police notes.

Starr v Ward [2015] EWHC 1987 (QB)

A defamation case in which Mr Justice Nicol held that the defendant's account was true due to core consistency and supporting witnesses, whereas the claimant's evidence was contradicted by show footage, missing witness support, and his own autobiography.

Vardy v Rooney [2022] EWHC 2017 (QB)

A defamation trial in which Mrs Justice Steyn found that the claimant knew of and condoned leaking private Instagram details to the press, drawing adverse conclusions from inconsistent statements and the deliberate deletion of WhatsApp messages and loss of a phone in the North Sea.