IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA LOLC Factors Limited, 100/1, Sri Jayawardenapura Mawatha, Rajagiriya.

Plaintiff-Appellant SC APPEAL NO: SC/CHC/APPEAL/20/2015 CHC NO: HC (CIVIL) 89/14/MR Vs.

1. Airtouch International (Private)

Limited, No. 290/2, Torrington Avenue, Colombo 05.

2. Horagampitagamage Panduka Nihal Attygalle, No. 03, Dharmapala Mawatha, Rajagiriya Road, Rajagiriya.

3. Jayaweera Arachchige Dhanushka Malinda Perera

4. Dharshinee Suneetha Kumari Peries Both of No. 290/2, Torrington Avenue, Colombo 05.

Defendant-Respondents Before: Hon. Justice S. Thurairaja, P.C.

Hon. Justice E.A.G.R. Amarasekara Hon. Justice Mahinda Samayawardhena Counsel: Hiran De Alwis with Randhini Fernando for the Plaintiff-

Appellant.

Defendant-Respondents are absent and unrepresented.

Argued on: 31.01.2024 Written Submissions:

By the Plaintiff-Appellant on 14.02.2024 Decided on: 03.04.2024 Samayawardhena, J.

Background The plaintiff filed this action in the Commercial High Court against the four defendants seeking to recover a sum of Rs. 8,004,744/58 with interest thereon from 01.07.2013 till the date of the decree and thereafter on the aggregate amount of the decree till payment in full. The plaintiff’s case is based on the cheque discounting agreement marked P1 entered into between the plaintiff and the 1st defendant. The account statements were marked P2 and P3. The letter of demand sent to the 1st defendant was marked P4. The 2nd-4th defendants were the guarantors to the said agreement. Those guarantees were marked P5, P5(a) and P5(b). The letters of demand sent to the guarantors were marked P6, P6(a) and P6(b). Summons were served on all four defendants but none of them came forward to contest the plaintiff’s case. According to the journal entry dated 06.05.2014, the Commercial High Court fixed the case for ex parte trial against all the defendants and directed the plaintiff to lead evidence by way of an affidavit.

The journal entry dated 01.10.2014 reveals that, the affidavit evidence (of the senior executive of the plaintiff company), together with the originals of the aforesaid documents, was tendered to Court on that date and the case was fixed for the ex parte judgment on 05.11.2014.

I must add that the documents tendered with the affidavit were not new documents. They were part of the plaint filed in Court and served on the defendants with summons.

The learned High Court Judge by judgment dated 05.11.2014 dismissed the plaintiff’s action. Hence this appeal by the plaintiff.

Although this Court issued notices on all the defendants on several occasions, they did not participate in the hearing before this Court either. The Commercial High Court dismissed the plaintiff’s action on two grounds:

(a) Notwithstanding the plaintiff’s assertion in the affidavit evidence that both the plaintiff and the 1st defendant are incorporated companies, the plaintiff failed to provide documentary evidence to prove their incorporation and registration;

(b) The Chief Legal Officer of the plaintiff company has signed the proxy on behalf of the plaintiff company instead of the directors.

The burden of proof in an ex-parte trial In a civil case the standard of proof is on a balance of probabilities. What does this mean? In Miller v. Minister of Pensions [1947] 2 All ER 372 at

374, Lord Denning declared:

That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: “We think it more probable than not,” the burden is discharged, but, if the probabilities are equal, it is not.

Are there degrees of proof within the standard of proof of the balance of probabilities? Theoretically, the answer is in the negative, but practically, such degrees do exist.

In Bater v. Bater [1950] 2 All ER 458, it was held that there may be degrees of probability within the civil standard of proof of balance of probabilities; the degree of proof must be