It’s well established that a person who pleads unlawful imprisonment does not need to prove that they should have been free. It is for the imprisoning party to justify their act.

How, if at all, does this affect the order of oral evidence? Should the witnesses of the defence also go first?

What, in any case, is best practice for timetabling witnesses? Who should go first and who should go last? Please broaden your answers in this second part to compare against a claim which does not involve imprisonment.

Please also provide references and case law, where possible.

Thanks everyone! Let me know if you need anything further from me

1 Answer 1


It is generally the case that the party seeking relief goes first, and the party defending the claim goes second, sometimes with rebuttal and even sur-rebuttal evidence presented after that. (Of course, sometimes witnesses are taken out of order for logistical reasons related to convenience for the witnesses.)

The claimant needs to prove a prima facie case that they were imprisoned and suffered damages as a result, and will generally offer up evidence to show that the imprisonment was unlawful, even though the ultimate burden of proof on the affirmative defense of justification for the imprisonment is on the defendant.

Keep in mind that there will have been a pre-trial exchange of evidence so the matters that will be presented at trial will not be a mystery to either party. Also, the claimant can (and often will) call hostile witnesses in their opening case.

The rules on order of presentation are not different from the usual rules in a false imprisonment case.

  • Thanks for your answer. What about in cases where the imprisonment itself isn’t disputed? The defence simply pleads it to be lawful? As the burden of proving it’s lawfulness falls on the defence, is it not the case that they should present their witnesses first? Commented Apr 22 at 21:15
  • @Joshcollins If the case is going to trial, something is disputed and the claimant will want to present their side of the case first. The government will have disclosed its justification in advance and the evidence that will be offered in support of it, which prima facie, would win the case for it in the absence of other evidence. The claimant will want to tear that down with cross-examination of hostile witnesses and other evidence. Also, damages will never be proved solely by stipulation, so the claimant will need to provide context for that part of the claim in the claimant's own case.
    – ohwilleke
    Commented Apr 22 at 21:26

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