In Morgan v Morgan [2026] EWHC 384 ('Morgan'), HHJ Paul Matthews (sitting as a Judge of the High Court), under the heading 'How civil judges decide cases', said, at paragraphs 10 to 20:
'General
10. For the benefit of the lay parties concerned in this case I will say something about how English judges decide civil cases like this one. I borrow the following words largely from other judgments of mine in which I have made similar comments. First of all, judges are human. They do not possess supernatural powers that enable them to divine when someone is mistaken, or not telling the truth. Instead, they take note of the witnesses giving live evidence before them, look carefully at all the material presented (witness statements and all the other documents), listen to the arguments made to them, and then make up their minds. The point is that there are a number of important procedural rules which govern the decision-making of judges, and which are not as well-known as they might be. I shall briefly mention some of them here, because non-lawyer readers of this judgment may not be aware of them.
Burden of proof
11. The first is the question of the burden of proof. Where there is an issue in dispute between the parties in a civil case (like this one), one party or the other will bear the burden of proving it. In general, the person who asserts something bears the burden of proving it. Here the petitioner bears the burden of proving his case. In relation to the counterclaim the fourth respondent bears the burden of proving her case against the petitioner and the third party. The importance of the burden of proof is that, if the person who bears that burden satisfies the court, after considering the material that has been placed before the court, that something happened, then, for the purposes of deciding the case, it did happen. But if that person does not so satisfy the court, then for those purposes it did not happen. The decision is binary. Either something happened, or it did not, and there is no room for maybe. That may mean that, in some cases, the result depends on who has the burden of proof.
Standard of proof
12. Secondly, the standard of proof in a civil case is very different from that in a criminal case. In a civil case like this, it is merely the balance of probabilities. This means that, if the judge considers that something in issue in the case is more likely to have happened than not, then for the purposes of the decision it did happen. If on the other hand the judge does not consider that that thing is more likely than not to have happened, then for the purposes of the decision it did not happen. It is not necessary for the court to go further than this. There is certainly no need for any scientific certainty, such as (say) medical or scientific experts might be used to.
The role of judges
13. Thirdly, in our system, judges are not investigators. They do not go looking for evidence. Instead, they decide cases on the basis of the material and arguments put before them by the parties. They are umpires, or referees, and not detectives. So, it is the responsibility of each party to find and put before the court the evidence and other material which each wishes to adduce, and formulate their legal arguments, in order to convince the judge to find in that party’s favour. There are a few limited exceptions to this, but I need not deal with those here.
The fallibility of memory
14. Fourthly, more is understood today than previously about the fallibility of memory. In commercial cases, at least, where there are many documents available, and witnesses give evidence as to what happened based on their memories, which may be faulty, civil judges nowadays often prefer to rely on the documents in the case, as being more objective: see Gestmin SGPS SPA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) , [22], restated recently in Kinled Investments Ltd v Zopa Group Ltd [2022] EWHC 1194 (Comm) , [131]-[134]. As the judge said in that case,
“a trial judge should test a witness's assertions against the contemporaneous documents and probabilities and, when weighing all the evidence, should give real weight to those documents and probabilities”.
15. In the present case, there are a number of useful documents available. This is important in particular where, as here, the relevant facts have occurred over a number of years, and time has elapsed since they took place. These messages enable dates and times of various events to be fixed with accuracy.
16. In deciding the facts of this case, I have therefore had regard to the more objective contents of the documents in the case. In addition to this, and as usual, in the present case I have heard witnesses (who made witness statements in advance) give oral evidence while they were subject to questioning. This process enables the court to reach a decision on questions such as who is telling the truth, who is trying to tell the truth but is mistaken, and (in an appropriate case) who is deliberately not telling the truth. I will therefore give appropriate weight to both the documentary evidence and the witness evidence, both oral and written, bearing in mind both the fallibility of memory and the relative objectivity of the documentary evidence available.
Reasons for judgment
17. Fifthly, a court must give reasons for its decisions. That is what I am doing now. But judges are not obliged to deal in their judgments with every single point that is argued, or every piece of evidence tendered. This is particularly important in a case like the present, where there was a significant amount of documentation placed before the court, amounting to 3 lever arch files of core bundle and 29 lever arch files of trial bundle, including two supplemental files. In addition, the written submissions of the parties (for opening and closing) amounted to 187 pages (46 for the petitioner and third party, and 141 for the Active Respondents). Judges deal with the points which matter most. Put shortly, judgments do not explain all aspects of a judge’s reasoning, and are always capable of being better expressed. But they should at least express the main points, and enable the parties to see how and why the judge reached the decision given.
Failure to call a witness or put in relevant evidence
18. Lastly, there is the question whether a party’s failure to call a relevant witness or put in relevant evidence which is available has any effect on a party’s case. The former question arose in Royal Mail Group Ltd v Efobi [2021] 1 WLR 3893 , SC. In his judgment, Lord Leggatt (with whom all the other members of the court agreed) said:
“41. The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority [1998] PIQR P324 is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.”
19. But the principle goes further, in that there may be things or documents, for example, which are (or were) available to a party and would be, or contain, evidence relevant to an issue before the court, but are never produced to the court by that party. Thus, in Armory v Delamirie (1722) Str 505 , the plaintiff was held entitled as against the defendant to a jewel that he had found, but the defendant refused to produce the jewel in order to be valued. The judge directed the jury
“that unless the defendant did produce the jewel, and shew it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages: which they accordingly did.”
20. Thus, if a party fails to disclose relevant documents in accordance with a disclosure obligation, the court may draw an appropriate inference against the party on the issue to which it was relevant. Steyn J applied the principle recently in the case of Vardy v Rooney [2022] EWHC 2017 (QB) , where an order was made for the inspection of the mobile telephone of the claimant’s witness, but the phone was allegedly “lost overboard” whilst on a boat trip a few days later.'[1]
In O'Driscoll v Clayton [2025] EWHC 2607 (Ch), the same judge, HHJ Paul Matthews (sitting as a Judge of the High Court), under the same heading 'How Civil Judges Decide Cases', set out, at paragraphs 21 to 33, a very similar explanation of how civil judges address cases.
Collatory Case Series
The Collatory Case Series, is an series of bulletins, designed to report that one case which collates the essential principles/propositions of law, for a particular doctrine/area of law (and perhaps, as here, provide a few extra citations/quotations etc.). It is not designed as a deep and comprehensive review of an area of law, but to provide that quick 'go to' case.
SIMON HILL © 2026*
BARRISTER
33 BEDFORD ROW
NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole, or the Copyright holder. No attempt has been made to provide an exhaustive review/account of the law in this area. *Copyright is owned by Barrister Search Limited.
[1] One could take issue with the limited description of the burden of proof. Writing extra-judicially in an article 'Black marbles, blue buses and yellow submarines: an essay on the civil standard and burden of proof' in the Law Quarterly Review [2024] LQR 570, Lord Leggart (Justice of the Supreme Court), under the heading '3. The function of the burden of proof', said (591-592):
'[Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 W.L.R. 948; [1985] 2 All E.R. 712.] and the line of Court of Appeal cases starting with [Morris v London Iron & Steel Co [1988] Q.B. 493; [1987] 2 All E.R. 496] show that the function of the burden of proof is not (or at least not primarily) to cater for a theoretical situation where the probabilities on each side are adjudged to be precisely equal. Nor is it to offer an escape route for judges who find it difficult to make up their minds. It is to provide a rule of decision in cases where the evidence is inadequate to permit a fact-finding tribunal reasonably to make a positive finding either way on the balance of probabilities. There are cases in which, whether because the evidence has too many gaps or is too unclear or unreliable or is insufficiently specific, the tribunal does not have reasonable grounds on which to base a conclusion either that an alleged fact in issue is more likely than not to be true or that it is more likely than not to be false. In such cases deciding the issue on the burden of proof is, in Lord Brandon’s words, "the only just course" to take.
It is the only just course to take because we do not want judges to make findings of fact which are not rationally supported by evidence. If the evidence is inadequate to justify a decision one way or the other, then rather than make a decision for which there are no reasonable grounds it is better to fall back on a default rule which allocates the risk of such an outcome in advance to one or other party. That is the primary function of the rules which allocate the burden of proof. Those rules are rules of substantive law which identify the essential elements of a claim or defence and hence the party in whose favour a fact in issue must be found for the claim or defence to succeed. It is an efficient principle, and a just one, to place on the party which needs a finding in its favour in order to succeed on an issue the onus of ensuring that there is enough evidence and evidence of sufficient quality placed before the tribunal to enable the tribunal to make a finding. If such evidence is lacking, the issue will be decided automatically by default against the party which bears this burden of proof.'
Later, he said, at 594:
'The standard of proof concerns the degree of epistemic probability required to justify a factual finding. The burden of proof, on the other hand, concerns the adequacy of the evidence which forms the basis for this assessment.'
And later, he said, at 594:
'We do not expect courts to be infallible, but we expect them to reach factual conclusions which are rationally supported by evidence. Cases where the evidence is so inadequate as to make this task impossible are thankfully rare. But it is in such rare cases that, to maintain the court’s legitimacy, it is necessary to fall back on the rules that allocate the burden of proof.'
(the whole article is recommended reading)