Burden of Proof in Undue Influence: Common Law and Codes on Collision Course

Abstract

Before the case of Royal Bank of Scotland v Etridge (No. 2), the modern presumption of undue influence appeared to be a potent one that had to be rebutted on a balance of probabilities. While it is clear from Etridge that the House of Lords intended to curtail the force of the presumption, it is difficult to determine the precise extent to which the presumption retains evidential significance. This is because the House of Lords failed to indicate whether the revised presumption was now one of law, casting the evidential burden upon the alleged dominant party to disprove the finding of undue influence, or simply one of fact, shifting the tactical burden. This is unfortunate because whether the alleged dominant party bears the evidential or the tactical burden can have a decisive effect on the outcome in borderline cases. This debate would be inconsequential for jurisdictions whose codified evidence laws are based on the work of Sir James Fitzjames Stephen if not for the fact that some courts have hitherto erroneously assumed that there is no difference between the codified and common law presumptions of undue influence. After Etridge, these jurisdictions can no longer afford to make such an assumption and must grapple with the interface between the common law presumption and its statutory counterpart.