In Daimler AG v Leiduck, the Court of Appeal recently reviewed what appears to have been a novel point regarding which party in civil proceedings has the burden of proving that a witness is competent to give evidence at the time of giving evidence.(1) At first instance, the judge had decided that the burden is on the party that calls the witness (in this case the defendant), as opposed to the party that challenges the competence of the witness. The defendant applied for permission to appeal aspects of the judge's ruling regarding some of the evidence ruled to be inadmissible. In considering and refusing the defendant's application, the Court of Appeal appears to have gone out of its way to confirm that the judge had been correct as a matter of principle and common sense.
The origins of the proceedings go back a long time to 1994, when the plaintiff obtained injunctive relief against the first and second defendants. The injunctions appear to have been discharged a few years or so later. It was not until approximately 10 years later that the defendants applied for an inquiry and assessment as to the alleged damage that they had suffered as a result of the injunction.
In support of the defendants' claim for damages, the first defendant made several sworn statements between 2008 and 2013. He also gave oral evidence in support via video link between February 2013 and August 2013. His oral testimony stopped on 22 August 2013 (the 34th day of the inquiry as to damages) when a medical report was handed to the judge which suggested that the first defendant was no longer able to participate as a witness in the proceedings.
It appears that from July 2011, the first defendant had been diagnosed as suffering from a form of dementia, the symptoms of which varied at different times. This diagnosis was not made known to the judge at the outset of the inquiry as to damages. The judge appears to have immediately adjourned the trial for further disclosure of information regarding the state of the first defendant's health and she made directions to that effect.
The first defendant (who had been an elderly gentleman) died on 23 March 2014 and the proceedings were continued on behalf of his estate.
In a judgment given in December 2016, the judge held that the defendants had the burden of proving that the first defendant had been (at the material times) competent, for the purposes of Section 3(b) of the Evidence Ordinance (Cap 8).(2) The judge considered that the competency of a witness is relevant to the admissibility of their evidence and, where an issue of competence is raised, proving that the witness is competent (so that their evidence is admissible) is part of the burden of proving the facts to which the evidence relates. Therefore, the burden fell on the defendants to prove that the first defendant had been competent at the material times.
The judge's ruling was important because the first defendant had been the lead witness for the defence and, importantly, in establishing the alleged loss for the purposes of the inquiry as to damages. His dementia appears to have fluctuated from first being diagnosed (in July 2011) to when the inquiry as to damages was adjourned (in August 2013). However, such was the unpredictable nature of the first defendant's condition that each occasion on which he had given evidence as part of the inquiry as to damages had to be examined and evaluated separately.
As a result of the ruling, the judge made several findings, including as follows:
- The first defendant had been competent to give evidence when he made certain sworn statements between January 2008 and April 2010.
- The defendants had failed to discharge the burden on them to show that the first defendant had been competent to give evidence when he made certain sworn statements between September 2011 and January 2013 and, as a result, that evidence was inadmissible.
- The first defendant had been incompetent to give evidence when he gave testimony via video link between February 2013 and August 2013 (save for one day) and, as a result, that evidence was inadmissible (save for the evidence given on that one day).
The judge refused permission to appeal in July 2020, on the basis that an appeal had no reasonable prospects of success and that, given the specific facts of the case, there was no other reason to allow permission to appeal.(3) The defendants applied for permission to appeal the judge's finding with respect to the second bullet point above and sought an order that the first defendant had been competent when giving this evidence.
On the application for permission to appeal to the Court of Appeal, the principal issue for determination was whether the appeal had reasonable prospects of success and that, in turn, depended on the Court of Appeal's consideration of the crucial point in dispute – namely, whether the judge had been correct to hold that the burden of proving the competency of a witness, pursuant to Section 3(b) of the Evidence Ordinance, fell on the party calling the witness as opposed to the party challenging the competency of the witness.
Like the judge, the Court of Appeal noted that Section 3(b) of the Evidence Ordinance is silent as to who has the burden of proving whether a witness is or is not of 'unsound mind'. Indeed, while the Evidence Ordinance's origins date back over a century, there appeared to be little or no authority on the principal issue in dispute. This was probably because over the years the incidence of the burden of proof had played less of a role – the focus in civil proceedings had usually been on the standard of proof and the strength and quality of the evidence. In the context of Section 3(b) of the Evidence Ordinance, it did not normally appear necessary to resort to the incidence of the burden of proof.(4)
The Court of Appeal noted that, in this case, the issue had assumed significance because of the fluctuating nature of the first defendant's dementia (before his death) when set against the different times and circumstances in which his evidence had been given.
The Court of Appeal agreed with the judge that, although Section 3(b) of the Evidence Ordinance was silent on the matter, the burden of proving that a witness is competent fell on the party who called the witness as part of their evidence – it did not fall on the party challenging the competency of a witness. While the issue appeared to be a novel point, as far as Hong Kong case law is concerned, the Court of Appeal did not consider that the defendants' application had any merit. Indeed, the Court of Appeal considered that the judge's ruling on the crucial point for determination had been based on general principles of evidence and matters of common sense.
The Court of Appeal quoted from a leading textbook that had been cited in an English case and referred to by the judge:
Decisions as to which party bears the burden of establishing a fact constituting a condition precedent to the admissibility of an item of evidence belong to the law of evidence. There is, however, very little authority on the subject, no doubt because, as a matter of common sense, the conditions of admissibility have to be established by those alleging that they exist.(5)
The Court of Appeal refused the defendants' application and disposed of the matter on the papers without a hearing. The Court of Appeal also ordered that no party could request the court to reconsider its decision at an oral hearing because the application was without merit.(6)
The decision of the judge and Court of Appeal on the principal point in dispute accords with what is the commonly held understanding – namely, that it is for the party calling a witness to prove (if challenged) that their witness is competent. Indeed, such is the widespread understanding of the position that it appears to have raised a novel point on which there was little or no Hong Kong case law.
The reasoning of the judge and Court of Appeal also makes sense. The competency of a witness goes to the admissibility of their evidence – where that competency is challenged, it makes sense that the burden of proving competency (so that the evidence is admissible) should fall on the party calling the witness as part of the burden of proving the facts to which the evidence relates. In addition, the party calling the witness will have better access to that person in order to assess competence which the opposing party will not.
The highly unusual circumstances of the case – in particular, the fluctuating nature of the first defendant's dementia set against the different circumstances of his evidence – were described by the Court of Appeal as a "very special combination of facts and circumstances" such that the incidence of the burden of proof with respect to Section 3(b) of the Evidence Ordinance assumed the significance that it did.(7) While it is not unusual to see pre-trial challenges to the admissibility of a witness's statement on various grounds, challenges to a witness's competency (at trial) are rare. Further, the rules of evidence for civil trials are far less stringent than they are for criminal trials.
However, it will be interesting to see whether (for example) fluctuating or longer-term ('long tail') illnesses, as a result of neurological or depressive conditions caused by COVID-19, lead to more questions being asked about the competency of some witnesses at trial.
Endnotes
(2) "Persons of unsound mind".
(5) Supra note 1, at para 32. Quoting 'Cross and Tapper on Evidence' (13th edition, 2018) at page 186 – the same passage of which is referred to in the fifth edition and in the English case R v Yacoob (1981) 72 Cr App R 313.
