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Once you have decided that you want and are able to take a PIL case forward, it is important to be able prove your case.
Only when you prove your case can you get a judgement in your favour and secure a remedy.
a) Civil Cases
If you bring a civil claim, you will need to provide evidence to support your claim. In other words, you have the “burden of proof” to prove your claim.
To succeed, you will need to;
b) Criminal Cases
Usually, the public prosecutor (the state official seeking to convict the defendant) relies on investigative authorities like the police to collect evidence.
The victim also has a role in providing evidence;
If you are bringing a private prosecution (see “Who Can Take Legal Action?”), you will be responsible for providing the court with the necessary evidence of the guilt of the accused.
a) Civil Cases
What you will need to prove will depend upon the type of civil claim that you bring.
Consider this common example.
If someone breaches a contractual promise they made to you. You must show;
i) The existence of the contractual promise by the defendant
ii) The breach of that promise by the defendant
iii) The way in which the defendant’s breach caused you loss
iv) Proof of the precise losses that you have suffered as a result
For further information on what you will have to prove if you bring a case, see the “Legal Area” relevant to your circumstances.
b) Criminal Cases
The prosecuting authorities have to prove that;
These elements and the tests of causation (what is needed to show the defendant was responsible) depend on the particular criminal offence as defined in the criminal code.
For example, if the law defines theft as “the taking of another person’s property without that person’s permission, with the intent to deprive the owner of it”, a prosecutor would need to prove the following elements:
Because of the serious consequences a criminal prosecution brings, in most countries, there is a high standard of proof that has to be met.
If you plan to file a criminal complaint, you can increase the chance that the case will be taken by the prosecutor by researching which elements the prosecutor will need to prove, and providing as much evidence for each element as possible.
Collecting evidence takes time and may involve contacting and meeting people (victims, witnesses, experts etc.), or going to the place where the wrong was committed.
When collecting evidence to support your case, you have to respect the law and the rights of others (e.g. the right to privacy).
a) How Can I Gather Information about the Person/Organisation I Want to Sue?
Before starting your research, it is important to decide which part of a company you want to sue (see “Who Can I Sue?”).
i) Finding Information About a Company/Organisation?
There are some challenges when gathering evidence against companies and organisations.
Check You Have the Right Name
Names of people, companies and organisations are sometimes difficult to find. Careful research is needed to ensure you have identified the correct target.
In most countries, companies should not have a name that is identical or similar to the name of another company. But scam companies may use names that are almost identical to names of well-known companies with a good reputation. Check if this has happened in your case.
Who owns the company? Is the company worth suing?
Rules on business secrets can make it difficult to find out details on companies’ activities and owners.
It also may often be difficult to obtain reliable information about the real economic worth of the company.
Sources of these types of information include;
Company and business registers
Business registers may be produced by public or private bodies.
Using the register, members of the public can generally find out;
The content of company registers is usually regulated by law, and the information provided varies from country to country.
Sometimes fees are charged to access a register.
If the fees are very high, you could ask (pro bono) corporate lawyers to help you; they often have annual subscriptions to company registers since they use them everyday.
Further information on company registers:
The main legal documents for state-owned companies may not be available in company registers, but be held by the public bodies which set up the company.
In some countries, the organisational structure and operational rules of a state-owned company may be defined and detailed by national legislation.
Other “legal persons”: associations, foundations, trusts
These won’t be listed on national registers of companies, but details about such organisations may be recorded in other registers.
Some organisations are not “legal persons” and may not be registered anywhere. These are known as “unincorporated associations”.
For “unincorporated associations”, you need to identify the natural persons associated with them. These individuals can be held responsible for the actions of the organisations.
Finding out who runs informal organisations can be difficult;
Company reports and filings
Companies often have to make reports and make information publicly available.
ii) Finding Information Out About an Individual
If you want to take legal action against an individual (sometimes called a “natural person”), the first question is in what capacity is he/she relevant to your case?
When you have answered that question, the following sources may provide information on the individuals in question.
Association with an organisation
If you are looking for an individual who may be the owner, representative, or office holder of a company, or other organisation, checking company registers (see section 1).
Office-holder in a public body
When senior public office holders are appointed, information on their positions are usually published.
Freedom of information laws also cover public bodies (see “Access to Information”);
Government bodies often hold databases which can help you research information on individuals.
You will first need to prove that you have a legal interest in obtaining information about that person.
When researching individuals, their right to privacy may limit what information you can access and use.
b) How do I Get Information on Activities of Possible Defendants?
For a successful legal action, you need to know not only who has done something harmful, but what has been done, and why and how it happened.
Useful sources for researching the activities of defendants include;
i) Public information
You can find much useful information readily accessible in publicly available sources.
Even if you find publicly-available information, there is nothing to prevent you from making further information requests to obtain additional relevant information that is not yet public (see “Access to Information”).
ii) Licences and permits
In most countries, private companies and individuals can only operate certain industrial or trade activities if they obtain licences.
The riskier a business is, the more licences are required and the more complex those licenses may be.
The details of these licences are normally held by the public office charged with oversight.
Sometimes, public offices have to publish license information;
When public bodies are reluctant to share the information you need, you will need to turn to other sources, such as;
iii) Public funds and public contracts
Public funds and public contracts may be an important source of information for preparing your legal action.
Try accessing this information through information requests to public bodies and through checking information in published sources.
Here are some examples of useful information sources you could try:
iv) Other Legal Cases
Other legal cases can be very important sources of information for your own legal action, where one of the defendants is involved.
In any court case, evidence is provided and analysed before the court;
In different countries and cases, rules vary on who can have access to courtrooms and case files;
Although, the right to a fair trial generally means court hearings and case files are public. Therefore, most information about court cases can be accessed by the public.
c) General Investigative Research Tools
Check out and use the following toolkits designed for investigative journalists:
There are different kinds of evidence. The main ones are:
a) Documentary evidence
Documentary evidence is generally viewed as the best form of evidence.
When compiling the evidence for your claim, prioritise the collection of documentary evidence.
Try and get the originals of the documents that you need. If you can’t get the originals, gather evidence showing that the copy is an authentic copy of the original.
Keep paper and electronic copies of all evidence.
i) Official documents: Official documents are important.
Emails or letters you have with different actors (victims, the defendant, administration, organisations etc) counts as evidence.
iii) Notes of relevant meetings
Write down notes on all the meetings you have with the parties involved in the case, and make them sign the notes.
iv) Medical certificates
If you have suffered physical harm, a medical certificate, made by a doctor or other medical professionals, stating that you have suffered an injury can be useful.
Research by independent experts can also be very useful.
vi) Photographs and videos
It is important that the date of all photos or videos evidence is clear and available.
It is also important that the picture or video can identify the place where it was taken;
vii) Evidence from the internet
You can use websites and other information found on the internet, by saving the address on a document, copying the article, printing it or even by taking a screen print.
viii) Witness evidence/testimonies
Declarations made by the victims or witnesses, asserting the existence of some facts are very important.
While collecting the testimonies, you have to register the identity of the person who is testifying, by taking her name and identity information and having her sign the testimony.
Declarations or statements made by witnesses are very important evidence in legal cases. Preparing them well takes a lot of time and is best done by lawyers. Here is a guide to doing this.
Collecting evidence costs money. You will need to take this into account when deciding if you are going to undertake litigation.
The costly parts of gathering evidence include:
For further information, see “How Can I Finance my Action?“