Judicial Notice in English Law by Leigh Ellis

A party who makes a factual assertion in English litigation bears the burden of proving the facts upon which it relies to prove its case. Evidence is required to prove factual assertions made in litigation. The exceptions are (1) those facts which are admitted by the opposing party, (2) where the party makes out an estoppel, or (3) facts which the court takes judicial notice. A fact is judicially noticed when a court accepts a fact without formal proof on the basis that the fact is within its general knowledge.

It is when a fact is so notorious or capable of demonstration that production proof would be wasteful of the court’s and party’s resources that the fact will be judicially noticed. In some cases the court may enter into an enquiry thereafter take notice of the alleged fact. Furthermore, statutes may specify that particular facts and matters be judicially recognised.

It is one of the fundamental principles of the conduct of litigation that a party seeking to prove an allegation bears the burden of proof in respect to that fact - that is, the party must be proved by formal evidence. Consequently, policy dictates that jurists should not use their own special knowledge, rather than commonly general common knowledge to decide cases. Doing so would result in reasoning which deprives the parties from making submissions in respect to the factors affecting the reasoning of the judge.

A court will judicially notice such matters as Acts of Parliament, the common law, the law of the European Economic Communities, including treaties, judgments and the Official Journal. Other examples include the currency of England, the system of weights and measures used in England and common methods of accountancy, and the number of days in a month. More specific facts may include that Marks and Spencer plc is a major UK retailer, investments that entail higher risk also attract higher rates of return. Suppose an issue turns on the meaning of a word, a dictionary may be referred to by the Court resolve a meaning where ambiguity or uncertainty exists. The more specific or localised the knowledge in question, the less likely a court is take judicial recognition of it. Moreover what may have been judicially noticed historically, is not necessarily noticed in modern times, due to the passage of knowledge which once well known.

Ultimately, it is for the judge to decide whether a fact should be judicially noticed. If it is the case that a fact is of particular importance to success at the trial, the prudent approach would involve proving the fact by formal evidence.

About The Author

Leigh Ellis is a commercial litigation lawyer providing legal advice on commercial and business disputes at Gillhams Solicitors in London. He has advised business in the US, Russia, United Arab Emirates and Monaco.

The author invites you to visit:
http://www.gillhams.com