Pope Urban Vlll took a cavalier attitude to evidence in his dealings with Galileo, but things have moved on since – as this Court of Appeal judgment shows

Popes can get irked. It happened when one Galileo Galilei wrote a startling little piece in National Geographic. “Get this straight,” he said, “the Earth is not the centre of the universe. It is just a blob that circles the Sun.” Pope Urban VIII thought Galileo was wrong and asked him to retract. “But I have proof, I have evidence,” the scientist told the pontiff.

Urban gave the scientist a talking-to. “To require proof, is to deny faith,” he said. And to this day there is many a disputing party that agrees with this. To prove a disputed fact you must bring evidence; hence the phrase “burden of proof”. You must bring enough evidence

to prove the facts on the “balance of probabilities”. And the way to get home with an adjudicator, arbitrator or judge is to put enough evidence under a tribunal’s nose so as to send the scales down in your favour.

A recent Court of Appeal case is helpful on burden of proof, Stephens vs Cannon [14 March 2005]. The trial judge in the case couldn’t make up his mind whether he preferred the expert evidence of surveyor A or surveyor B. Surveyor A put a value on the work of £1.9m. Surveyor B said it was £1.5m. Both A and B were tested in cross-examination and were both honest and competent.

“Heavens,” said the judge, “this is difficult. I don’t think it is possible for me to take account of my subjective view … since that would be for me to set myself up as an expert and usurp the role of the experts. It is necessary for me to choose between A and B if it is possible.”

But, he couldn’t. “I am unable to decide that I prefer one view over the other, and in those circumstances the case falls to be decided on the basis of the burden of proof. As the claimants bear the burden of proof on the balance of probabilities, and as they have failed to present this proof, I shall adopt the view put forward by the defendants.” So he dismissed the £1.9m and plumped for the £1.5m. Is there anything wrong with that in your view?

The claimant got irked and went to the Court of Appeal. The complaint was that the first judge “abdicated his judicial responsibility” by failing to reach a conclusion about the expert valuations.

It’s a Pope thing
It’s a Pope thing

In the case of a deadlock I will ask: ‘What in the light of the evidence of the two rival experts is the probable valuation to be arrive at?’

In other words, he said he couldn’t decide between experts A or B and therefore he would go against the party with the overall burden of proof. Now then, to resort to that approach in court or in arbitration is most unusual and I will tell you why in a moment. But to see that happen in an adjudication wouldn’t surprise me one bit – and I for one don’t like it. Let me tell you as an arbitrator that it is ever so ordinary to find two experts to be absolutely at odds, but each be absolutely dead straight and credible. Now what? Two things dominate my thinking. First, I am not going to simply choose A or B’s evidence. Instead I will ask: “What in the light of the evidence of the two experts is the probable valuation to be arrived at?” And to do that under the English arbitration act I will sit with those two experts and strive to find elements of their evidence that leads to a value. That is called “taking the initiative to find the facts”.

All that is very well in arbitration or litigation because broadly there is no time constraint, as there is with adjudication. And if the parties will not agree to extend time to allow an adjudicator to sit with the experts and tackle the same task, there is a real chance he will, rightly, simply fall back on the brutal “burden of proof” bolthole.

A summary process such as 28-day adjudication requires the evidence scales to go down with a bump.

But what did the Court of Appeal say? The judges there found that not “striving” to make a finding on the experts’ materials is excusable in exceptional cases. The court did not say that is what might happen in adjudication. I am.

It ought not happen when time is at large, as it is in arbitration. But if it is necessary to conclude that you as arbitrator or summary adjudicator cannot decide between the evidence of A or B there is one more hint. Give the parties a fully reasoned explanation of how hard you tried as the tribunal. Chapter and verse will go down well. By the way, how do they make white smoke?

Tony Bingham is a barrister and arbitrator specialising in construction, info@tonybingham.co.uk