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V. Preparing a case for a court trial

After the parties file the statement of claim, defence (and counterclaim, if any) and reply (and defence to counterclaim, if any), the parties will have to tender their evidence to the court in order to prove their case.


In a civil action, the burden of proof rests on the party who asserts the fact (i.e. the party who makes an allegation must prove it). In that case, not only the plaintiff but also the defendant will have the burden to prove his allegations if the defendant counterclaims that the plaintiff is liable for the subject matter. The standard of proof is "on the balance of probabilities".


Which facts are at issue at the trial depends partly on substantive law and partly on the contents of the documents which have already been filed with the court (including the statement of claim, defence and counterclaim (if any)). This is because the parties may have already admitted to some facts relevant to the case in those documents.


The party who bears the burden of proof can prove the facts in various ways, including oral evidence from witnesses, documents, photographs, audio or videotapes, or electronic data contained in any tapes or discs, etc. It is always advisable to obtain all the evidence at an early stage in the proceedings (and possibly before the commencement of the trial). All these forms of proof will be tendered before the court at the trial.


In a civil action, any evidence which is relevant to the disputes at issue, and which a party intends to rely on at the trial, will have to be disclosed to the other parties to the civil action prior to the trial. The process whereby documentary evidence is disclosed is called discovery and the process in which oral factual evidence is disclosed is called exchange of witness statements (please refer to question 1 and question 2).