Case Nos: CA-2024-002136 - [2025] EWCA Civ 921

Burden of proof

As I have mentioned, one of the grounds of appeal is to the effect that the Judge erred in concluding that FCCB bore the burden of establishing certain matters. These included the deductibility of the heads of costs at issue.

Ms Parkin did not in her oral submissions develop this ground separately. In any event, I do not consider it to be well-founded.

The Judge proceeded on the basis that the Council bore the burden of proving that it was entitled to the relief it sought but that it was apparent from the terms of the Project Agreement that it was for FCCB, with “sole knowledge” of the costs, to demonstrate that particular items of costs were deductible. The Judge concluded that the evidence before him did not show that.

The Judge’s approach discloses no legal error. FCCB has itself accepted that it has a contractual burden to identify deductible costs. Given, moreover, that it is FCCB which can speak to what costs have been incurred, and why, the evidence and explanations provided by FCCB are bound to be of crucial importance. There was nothing wrong in the Judge finding in the Council’s favour in circumstances where he considered that the “all-or-nothing” approach adopted by FCCB had not yielded evidence to confirm the deductibility of the costs at issue.