Civil Procedure and Evidence: Forum, Proof and Finality
Civil procedure and evidence governs how a private dispute is framed, proved and enforced. The exam tests jurisdiction and pleadings, the allocation of the burden of proof, admissibility, and the preclusive effect of judgments.
Forum and framing
- Jurisdiction over subject matter, territory, value, and the defendant's domicile; forum non conveniens applies in some systems.
- Pleadings must state material facts and the relief sought. Evidence and claims outside the pleadings ordinarily fail, and amendment is discretionary.
Burden and standard
- He who asserts must prove: the claimant establishes the elements of the cause of action; the defendant bears affirmative defences such as limitation, payment, release or contributory negligence.
- Standard: balance of probabilities, or the judge's inner conviction, depending on the system. Presumptions shift the burden of production, not always the burden of proof.
Evidence
- Relevance precedes admissibility. Hearsay restrictions; legal advice privilege and without-prejudice privilege; documentary and electronic evidence requires authentication; experts assist on specialised matters.
- Illegally obtained evidence may be excluded at the court's discretion.
Judgments
- Res judicata requires the same parties, the same subject matter and the same cause of action. Default judgment follows failure to appear; setting aside requires a defence on the merits and a reasonable excuse.
Worked example
P sues for unpaid invoices; D pleads the debt is time-barred. Reasoning: P proves the contract and non-payment; D bears the burden of the limitation defence. If D shows the debt fell due outside the limitation period, P must prove interruption by acknowledgment or by the filing of suit.
Traps
- Confusing admissibility with weight.
- Arguing limitation as a nullity rather than as an affirmative defence.
- Asserting res judicata without identity of parties, subject and cause.