may be laid down by a specific statutory standard such as “reasonably
satisfied”.
In principle making this comparison is a simple task: the court measures the
determined probability that the initiating party’s version of the facts is true
against the probability required by the standard of proof. If the party has
achieved the required standard they have, in legal terms, proved their case.
Consequently, the court then resolves the dispute of facts in favour of that
party.
Issues of Law
Introduction
The simple form of the model for litigation described above can be developed
or expanded to explain an issue of law. This will now be done followed by
discussion of how to resolve the issue of law.
Defining the Issue
Let us use Element 4 of some cause of action to illustrate an issue of law in a
hypothetical case. Element 4 has three
meanings, that
are designated Element
4M1, Element 4M2 and Element 4M3, the range being Elements 4M1-3. These
can be set out in an excerpt from a developed form of the model in the
following way:
Element 4
Fact 4
Evidence 4
Element 4M1
Element 4M2
Fact 4M2
Evidence 4M2
Element 4M3
Figure 4.11 Issue of Law
As set up for this illustration, Element 4M2 is the version of Element 4 that
favours the plaintiff because Element 4M2 is satisfied by Fact 4M2 which the
plaintiff can
prove by Evidence 4M2. Element 4 raises an issue of law in this
case because two necessary conditions are satisfied concerning the plaintiff.
First, they possess evidence that can prove a fact that satisfies a version of
Element 4; in the illustration the plaintiff possesses Evidence 4M2 that
can
prove Fact 4M2, which in turn satisfies Element 4M2. Second, they do not
possess evidence to prove facts that would satisfy other versions of Element
4; in the illustration they do not possess Evidence 4M1 or 4M3 to prove Facts
4M1 or 4M3 that would satisfy Element 4M1 or Elements 4M3.
Since these conditions are satisfied, there is an issue of law. When the court
hears the issue, the plaintiff wins on this point,
and satisfies the disputed
element, Element 4, only if the court holds that Element M2 is the correct legal
meaning of Element 4.
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