exparte trials - evidentiary burden.

 

An ex parte case is not a gift to the plaintiff. The defendant’s absence removes the opposition; it does not remove the plaintiff’s burden. The judge must still be satisfied, on the evidence placed before the Court, that the plaintiff is entitled to the relief claimed. If there is no satisfactory evidence, the action must be dismissed.

Main statutory basis

Section 85(1) of the Civil Procedure Code provides that the plaintiff may place evidence before Court by affidavit or oral testimony and move for judgment, but the Court may enter judgment only “if satisfied that the plaintiff is entitled to the relief claimed”, either fully or with modification.

So the judge has a duty to look at the evidence. He is not a rubber stamp.

Leading cases and principles

1. LOLC Factors Limited v. Airtouch International (Pvt) Ltd and Others

SC/CHC/Appeal/20/2015, Supreme Court, decided on 03.04.2024

This is the most useful modern authority.

The Supreme Court held that, under section 85(1), the plaintiff in an ex parte trial must lead evidence sufficient to satisfy Court that he is entitled to the relief claimed. No higher degree of proof is required, but if there is no satisfactory evidence, the Court must dismiss the plaintiff’s case. The Court expressly warned that this does not mean the Court can mechanically enter judgment without considering the evidence.

The Court also stated that the civil standard remains the balance of probabilities, but its application is flexible according to the gravity of the matter. The Court cited Lord Denning’s formulation in Miller v. Minister of Pensions [1947] 2 All ER 372, namely that if the evidence makes the matter “more probable than not,” the burden is discharged; if the probabilities are equal, it is not.

Principle:
Even in an ex parte trial, the judge must examine the evidence. The plaintiff need not prove the case as if it were contested, but he must prove enough to satisfy Court that the relief is legally and factually justified.

2. The Finance Company PLC v. Thushara and Others

SC/CHC/Appeal/5/2012, Supreme Court Minutes of 26.01.2017

This case is repeatedly cited by the Supreme Court as authority on the burden in an ex parte trial.

The principle stated is that a plaintiff in an ex parte trial is usually required to adduce evidence only on a prima facie basis, establishing the constituent elements of the cause of action. But this is subject to the Court seeing no reason to doubt the authenticity and bona fides of the evidence.

Principle:
The burden is lighter because the evidence is unchallenged, but it is not abolished. The plaintiff must still establish the essential ingredients of the claim.

3. De Silva v. De Silva

(1974) 77 NLR 554

In this case, Vythialingam J. observed that “the evidence led in an ex parte trial is of the barest minimum.” That statement has been repeatedly approved and applied in later cases.

But the same principle must be read with caution. “Barest minimum” does not mean no evidence. It means that, since the defendant is absent and there is no cross-examination, the plaintiff need not lead the same volume of evidence required in a contested trial.

Principle:
The evidence may be minimal, but it must still be sufficient.

4. Brampy v. Peris

(1897) 3 NLR 34

This is an old but powerful authority.

Lawrie A.C.J. held that whatever evidence is led at an ex parte trial, it must be sufficient to satisfy the judge, and the judge is not bound to grant a decree until he is satisfied. If the judge is dissatisfied, he should point out the defect in the evidence and allow the plaintiff an opportunity to supplement it.

Browne A.J. similarly stated that where the judge has a doubt about the plaintiff’s right to judgment, the plaintiff should be given an opportunity to dispel that doubt before the action is finally dismissed.

Principle:
The judge must be satisfied. If not satisfied, he should not blindly dismiss or blindly grant relief. He should identify the evidentiary defect and give the plaintiff a fair opportunity to cure it.

5. Gunasekera v. Punchimenike and Others

[2002] 2 Sri LR 43, Court of Appeal

This case is important where the plaint itself is defective or ineffective.

The Court of Appeal held that where the plaint is ineffective, the Court should not use the ex parte process to help the plaintiff repair the case behind the back of the defendant. Wigneswaran J. stated that if the plaintiff fails to prove the case, the Court must dismiss the action, not salvage it behind the defendant’s back.

The Court also warned against allowing plaintiffs to file one kind of plaint and obtain an ex parte decree of another kind without notice to the defendants.

Principle:
An ex parte trial must proceed on the case pleaded. The Court cannot allow the plaintiff to improve, amend, or transform the case behind the absent defendant’s back.

6. Rohan Ajith Jude Silva v. Y. B. Aleckman

SC Appeal No. 46/05, Supreme Court, decided on 18.11.2013

This case shows that an ex parte judgment may be invalid if the plaintiff has not placed essential admissible evidence before Court.

The Supreme Court held that the ex parte hearing could not have properly resulted in judgment without the Court having access to crucial evidence from the earlier District Court proceedings. The Court stated that incomplete information prevented the Court from arriving at a legally accurate decision and that the burden of satisfying Court under section 85(1) had not been adequately discharged.

Principle:
Even where the defendant is absent, the Court must have the necessary evidence before it. Personal knowledge or unchallenged oral evidence cannot replace essential documentary proof where the law requires the document.

7. H. K. D. W. De Alwis v. Ponsuge Jayantha Chandrakumara Thissera Sandanayake and Another

SC Appeal No. 76/2017, Supreme Court, decided on 13.06.2025

This is a recent Supreme Court application of the same principle.

The Court cited LOLC Factors, De Silva v. De Silva, and The Finance Company PLC v. Thushara, and reaffirmed that in an ex parte trial the plaintiff must lead evidence sufficient to satisfy Court that he is entitled to relief; if there is no satisfactory evidence, the Court must dismiss the case. The Court repeated that the plaintiff usually needs to establish the case only on a prima facie basis by proving the constituent elements of the cause of action, subject always to the Court having no reason to doubt the authenticity and bona fides of the evidence.

Principle:
The modern Supreme Court position is settled: ex parte does not mean automatic judgment. It means a lighter, but still real, evidentiary burden.

An ex parte trial under the Civil Procedure Code does not relieve the plaintiff of the burden of proving his case. The absence of the defendant may render the plaintiff’s evidence unchallenged, but it does not convert the plaint into proof. The Judge is not bound to grant judgment merely because the defendant is absent. He must still examine the evidence and be satisfied that the plaintiff is entitled to the relief claimed.

Section 85(1) of the Civil Procedure Code itself makes this plain. The Court may enter judgment only if it is satisfied that the plaintiff is entitled to the relief claimed. That satisfaction must arise from evidence, either by affidavit or oral testimony. If the evidence is insufficient, the Court must refuse relief or dismiss the action.

The Supreme Court in LOLC Factors Limited v. Airtouch International (Pvt) Ltd and Others, SC/CHC/Appeal/20/2015, decided on 03.04.2024, stated the principle clearly. In an ex parte trial, the plaintiff must lead evidence to satisfy Court that he is entitled to the relief claimed. No higher degree of proof is required. But if there is no satisfactory evidence, the Court shall dismiss the plaintiff’s case. The Court further warned that an ex parte trial does not authorise the Court to enter judgment mechanically without considering the evidence.

The same approach appears in The Finance Company PLC v. Thushara and Others, SC/CHC/Appeal/5/2012, Supreme Court Minutes of 26.01.2017, where the Supreme Court held that the plaintiff in an ex parte trial need only present evidence on a prima facie basis, demonstrating the constituent elements of the cause of action, subject to the Court seeing no reason to doubt the authenticity and bona fides of that evidence.

The older authorities are to the same effect. In De Silva v. De Silva (1974) 77 NLR 554, it was observed that evidence in an ex parte trial may be of the barest minimum. But that does not mean that no proof is required. In Brampy v. Peris (1897) 3 NLR 34, Lawrie A.C.J. stated that the evidence, whatever it may be, must be sufficient to satisfy the Judge, who is not bound to grant a decree until he is satisfied.

Therefore, the true rule is simple. The defendant’s absence removes contest; it does not remove proof. The plaintiff’s evidence need not be as elaborate as in a contested trial. But the essential facts constituting the cause of action must be proved. If the relief claimed is serious, unusual, unsupported by documents, inconsistent with the pleadings, or based on doubtful material, the Judge must scrutinise the evidence with corresponding care.

A judgment entered ex parte without such judicial evaluation is not a judgment according to law. It is merely the plaint converted into a decree. The Civil Procedure Code does not permit such a baseleess course.

 

Mrs. Sirimavo Bandaranaike v. Times of Ceylon Limited

[1995] 1 Sri LR 22

Supreme Court

S.C. Appeal No. 20/91

C.A. No. 515/84

D.C. Colombo No. 81692/M

 

In that case, the Supreme Court dealt expressly with the duty of Court in an ex parte trial under sections 84, 85, 87 and 88 of the Civil Procedure Code. The plaintiff had obtained an ex parte judgment for defamation. But the Supreme Court noted that one essential ingredient of liability was proof that the defendant had published the impugned statement. There was “not a scrap of evidence” to show publication by the defendant; on the contrary, the newspaper itself showed publication by another entity, namely the Competent Authority. Yet the trial judge entered judgment.

The principle is powerful. The Supreme Court accepted that, even where the defendant is absent, the judge must act according to law. The absence of the defendant does not relieve the plaintiff of proving the essential ingredients of the cause of action. The Court referred with approval to the principle that, in entering an ex parte judgment, a judge is as much bound to make a legal order as in a contested case; the judge must ensure that the relief claimed is due both in fact and in law, and must dismiss the claim if the plaintiff is not entitled to it.

Principle in Mrs. Sirimavo Bandaranaike v. Times of Ceylon Limited

 

The principle was authoritatively stated by the Supreme Court in Mrs. Sirimavo Bandaranaike v. Times of Ceylon Limited, [1995] 1 Sri LR 22. That was also a case arising from an ex parte judgment. The Supreme Court held, in substance, that the absence of the defendant does not relieve the trial judge of the duty to act according to law. The plaintiff must still prove the essential ingredients of the cause of action. The Court must be satisfied, on the evidence, that the relief claimed is due both in fact and in law.

In that case, the plaintiff had sued the defendant newspaper company for defamation. But one essential ingredient of liability was proof that the defendant had published the impugned matter. The Supreme Court observed that there was not a scrap of evidence that the defendant had published it. On the contrary, the document produced in evidence showed that publication was by another. Yet ex parte judgment had been entered. The Supreme Court treated that as a grave defect in the judgment.

The case therefore lays down a clear and salutary rule. An ex parte trial is not an automatic decree. It is still a trial. The defendant’s absence removes opposition, but it does not remove proof. The plaint does not prove itself. The judge must examine the evidence, consider whether the ingredients of the cause of action have been established, and grant only such relief as the evidence and the law justify.

This principle is reinforced by section 85 of the Civil Procedure Code. The Court may enter judgment only where it is satisfied that the plaintiff is entitled to the relief claimed. Such satisfaction must be judicial satisfaction. It must be reached after hearing and assessing the evidence. In Sirimavo Bandaranaike v. Times of Ceylon Limited, the Supreme Court further observed that section 85(2), which permits the Court to grant less than the whole relief claimed, itself shows that the Court must judicially assess the evidence in relation to the ingredients of the plaintiff’s cause of action before deciding what relief, if any, may be granted.

Accordingly, where a civil case proceeds ex parte, the judge is not bound to give judgment as prayed for in the plaint. He must first ask: Has the plaintiff proved the facts necessary to sustain the cause of action? Has the plaintiff proved the legal basis for the relief? Is the relief claimed supported by the pleadings and evidence? If the answer is no, the action must be dismissed or the relief must be refused or modified.