ABSTRACT
Arnould,179 relying on a rather tenuous statement made by the court of first instance in The Brentwood,180 states that it is the assured who has to prove that the requirement of the proviso is satisfied. The opposite view, however, can be found in O’May, where it is also said that one should not be too perturbed with this issue as, for want of a better expression, it will all in the end come out in the wash with discovery and exchange of pleadings.181 With due respect, it is submitted that the question of burden of proof is a matter of great tactical importance, especially in the light of the fact that a judge could dismiss a case purely on the ground of the plaintiffs having failed to prove their case. We were recently reminded by the House of Lords in The Popi M182 of the principle that if the party upon whom the burden of proof lies in relation to any averment is unable to discharge that burden, the plaintiffs’ case would be dismissed. If the persuasive burden lies with the assured, it is for them to discharge that burden; and not for the underwriters to prove or show how the loss occurred. It is contended that whether the burden of proof lies with the assured or with the underwriters is largely dependent upon how one regards the terms of the proviso: Is it a condition of the claim or is it a defence?
