BURDEN AND STANDARD
OF PROOF
IN
CIVIL PROCEEDINGS
Incidence of the legal burden of
proof
The party who raises a fact in issue bears the legal
burden of proving it, thus:
–the claimant must prove those facts in issue which
form essential ingredients of his claim, and
–a defence which merely amounts to a denial of
issues raised by the claimant does not impose a legal
burden of proof upon the defendant, but
–a defence which raises new issues which were not
raised by the claimant will impose a legal burden of
proof on the defendant
The evidential burden
•This is the burden of establishing a prima facie case
in relation to the issues in relation to which a party
bears the legal burden of proof
•Establishing a prima facie case does not guarantee
success, though it should do so if the other party
does nothing to rebut the prima facie case.
•Normally the court will not entertain a submission of
no case to answer in civil proceedings in the absence
of a jury unless the defence elect to offer no evidence
Standard of proof
•The civil standard is proof on the balance of
probabilities (more probable than not)
•Where this standard is not attained, merely producing
a more persuasive case than the other party is not
sufficient to discharge the legal burden of proof (i.e.
having a better case than the other side is not
sufficient to discharge the legal burden of proof if your
case is not probably true)
•Exceptionally statute or the common law may require
proof to the criminal standard in civil proceedings (e.g.
civil contempt of court)
C was injured when she was hit by a car driven by D. C,
asserting that D was using her mobile phone at the time of
the accident, is bringing a negligence claim against D. D,
denying that she was using her mobile phone at the relevant
time, claims that she did not drive carelessly and, moreover,
claims that C crossed the road without looking.
Which is/are true?
(i) C must prove D’s negligence on the
balance of probabilities.
(ii) D must prove on the balance of
probabilities both that she was not
using her mobile phone and that C
crossed the road without looking.
Answers
(i) C must prove D’s negligence on the
balance of probabilities.
(ii) D must prove on the balance of
probabilities both that she was not
using her mobile phone and that C
crossed the road without looking.
(i) is true
C was injured when C fell over in the centre of the
workshop where C works. C asserts that the
accident was caused by the negligence of D, his
employer, in failing to properly maintain the tiled
floor. D asserts that the floor was properly
maintained and that C was drunk when he fell
over. The only evidence that C relies on in support
of his assertion is his own evidence that several
years earlier he once noticed a loose tile on the
floor at one corner of the workshop. D adduces no
evidence to prove its assertions.
Has C discharged the legal burden of proof?
yes/no
ANSWERS
Has C discharged the legal
burden of proof yes/no?
No, C has not
Serious allegations
•An allegation of criminal conduct made in civil
proceedings (e.g. where the basis of a claim in tort is that
the defendant committed a rape or murder) does not
impose a higher standard of proof than the normal civil
standard, though more cogent evidence may be
required to persuade a court that a more serious
allegation is true on the balance of probabilities (as it
will be less likely to be true)
•Thus, where the allegation is sufficiently serious, what
the the civil standard requires may, in practice, effectively
equate with the criminal standard but it is the civil
standard that remains applicable
Steve is questioned by the police on
suspicion of rape but is not prosecuted
due to lack of evidence. The complainant,
Edna, brings a civil claim in tort against
Steve in respect of the alleged rape.
Which one is true?
[a] Edna must prove her claim beyond
reasonable doubt.
[b] Edna must prove her claim on the
balance of probabilities.
ANSWERS
[a] Edna must prove her claim
beyond reasonable doubt.
[b] Edna must prove her claim on
the balance of probabilities.
[b] is true
Admissibility of Evidence
• Where the admissibility of evidence (e.g. the
competence of a witness) depends upon the
resolution of a question of fact the burden of
proving the fact is borne by the party
tendering the evidence
• The standard of proof in civil proceedings is
proof on the balance of probabilities
Presumptions
(civil and criminal proceedings)
• Four categories of presumption:
– Rules of law concerning incidence of burden of
proof such as the presumption of innocence
(Woolmington) and the presumption of sanity
(M’Naghten), both already considered in the
context of criminal proceedings
– Rebuttable presumptions of law
– Presumptions of fact
– Irrebuttable (conclusive) presumptions of law
Rebuttable Presumptions of Law
•Common law or statute presumes the
presumed fact to have been proved upon proof
of the primary fact unless the presumption is
rebutted by the other party.
•In relation to rebuttal, the presumption may
impose a legal burden (a “persuasive
presumption”) or an evidential burden (an
“evidential presumption”) on the other party.
Persuasive presumptions
•A persuasive presumption imposes a legal
burden of proof on the other party (i.e. shifts the
legal burden of proof in relation to the presumed
fact) and rebuttal may require proof on balance of
probabilities or (now less common) proof beyond
reasonable doubt.
•Example of persuasive presumption: s.11 CEA
1968; proof of relevant and subsisting conviction
gives rise to presumption that person convicted
committed offence unless rebutted by other party
on balance of probabilities
D’s car collides with C’s car. C asserts
negligence and adduces evidence of D's
subsisting previous conviction for careless
driving, which relates to the facts of the accident
in which their cars collided. D claims that she did
not drive carelessly.
Which one is true?
[a] The judge must presume that D committed the offence
of which she was convicted and she is not entitled to
adduce evidence to rebut this presumption.
[b] The judge must presume that D committed the offence
of which she was convicted unless D proves on the
balance of probabilities that this was not so.
ANSWERS
[a] The judge must presume that D committed the
offence of which she was convicted and she is not
entitled to adduce evidence to rebut this
presumption.
[b] The judge must presume that D committed the
offence of which she was convicted unless D
proves on the balance of probabilities that this was
not so.
[b] is true.
Evidential presumptions
An evidential presumption does not impose a
legal burden of proof on the other party and
rebuttal requires the other party to adduce
sufficient evidence to rebut the presumption, in
which case the first party must discharge the legal
burden of proving the presumed fact
Example: common law presumption that a
machine (of a type which normally works
properly?) was working properly at a give time
may be rebutted by evidence to the contrary
C and D, two motorists, were involved in a
collision at a junction controlled by traffic lights.
The lights are regularly inspected and there have
been no reports of them ever malfunctioning. C
is bringing a civil claim in negligence against D in
respect of the accident. C and D have both given
evidence to the effect that they drove through
green traffic lights. There is no evidence before
the court to to the effect that the traffic lights
were not working properly at the time of the
accident.
The judge should presume that the traffic lights
were working properly
(true or false)
ANSWERS
The judge should presume that the
traffic lights were working properly
(true or false)
true.
Rebuttable presumptions:
criminal proceedings
• Where a rebuttable presumption of law imposes a legal
burden of proof on the prosecution, the standard of proof
is proof beyond reasonable doubt but where it imposes
the legal burden on the defence the standard is proof on
the balance of probabilities.
•In the absence of a Woolmington exception a
presumption cannot impose more than an evidential
burden on the accused.
•Imposing a legal burden of proof on the accused may
(but will not necessarily) violate Article 6(2) of the
European Convention on Human Rights
Presumptions of Fact
•These are inferences of fact which a court may
draw in consequence of the existence of another fact
but is not obliged as a matter of law to draw
•They do not impose either a legal burden of proof or
an evidential burden on the other party
•Example: under s.8 CJA 1967, a court or jury is not
bound to infer that a person intended or foresaw a
result of his actions which was a reasonable and
probable consequence thereof but, rather, should
decide whether he did so by reference to all the
evidence, drawing such inferences as appear proper
in the circumstances
Colin walks up the Stan, pulls out a
gun, presses it against Stan’s arm
and shoots Stan in the arm.
Which one is true?
[a] The jury must presume that Colin intended to
shoot Stan unless Colin rebuts this presumption
on the balance of probabilities.
[b] The jury must presume that Colin intended to
shoot Stan unless Colin rebuts this presumption
beyond reasonable doubt
[c] The jury may infer that Colin intended to shoot
Stan
ANSWERS
[a] The jury must presume that Colin intended
to shoot Stan unless Colin rebuts this
presumption on the balance of probabilities.
[b] The jury must presume that Colin intended
to shoot Stan unless Colin rebuts this
presumption beyond reasonable doubt
[c] The jury may infer that Colin intended to
shoot Stan
[c] is true
Irrebuttable (or Conclusive)
Presumptions of Law
•These are rules of substantive law which,
where they operate, oblige the court to
conclusively presume the existence of the
presumed fact and which do not permit the
other party to adduce evidence in rebuttal.
•Example: s.13 CEA 1968; proof of relevant
and subsisting conviction on part of claimant
in defamation proceedings gives rise to
irrebuttable presumption that person
convicted committed offence
Rolf asserts in an article that Victor is a rapist.
Victor intends to bring a defamation claim against
Rolf. Victor was once convicted of rape, but the
conviction was quashed on appeal.
Which one is true?
[a] The judge must presume that Victor committed the
offence of which he was convicted unless Victor rebuts
this presumption on the balance of probabilities.
[b] The judge must presume that Victor committed the
offence of which he was convicted unless Victor rebuts
this presumption beyond reasonable doubt.
[c] The judge must presume that Victor committed the
offence of which he was convicted.
ANSWERS
[a] The judge must presume that Victor committed the
offence of which he was convicted unless Victor
rebuts this presumption on the balance of
probabilities.
[b] The judge must presume that Victor committed the
offence of which he was convicted unless Victor
rebuts this presumption beyond reasonable doubt.
[c] The judge must presume that Victor committed the
offence of which he was convicted.
They are all false
Res Ipsa Loquiter
•Presumption of negligence arises where claimant
proves that the “thing” was under the defendant’s
management and that the accident was a type which
would not normally occur if proper care was taken by
those under whose management the thing was.
•Is it a rebuttable presumption of law which imposes
a legal burden of proof on defendant? Probably not.
•Is it a rebuttable presumption of law which imposes
an evidential burden proof on defendant? Possibly.
•Is it a presumption of fact? Possibly.
Alan is passing a warehouse, owned by Sid,
when a piano falls out of a doorway several
storeys above ground level and hits Alan,
breaking his arm. Alan intends to bring a claim
in negligence against Sid, but has no evidence
to prove what caused the piano to fall from the
doorway.
The judge must presume negligence
unless Sid disproves this beyond
reasonable doubt
(true or false?)
ANSWERS
The judge must presume negligence
unless Sid disproves this beyond
reasonable doubt
(true or false?)
FALSE
Judicial Notice
(Criminal and Civil Proceedings)
•Where the judge takes judicial notice of a fact (or
directs the jury to do so) he accepts that it is true
without requiring a party to prove it and does not
permit evidence in rebuttal to be adduced in relation
to it
•The court may take judicial notice of notorious
facts, well established facts or facts which can be
established by reference to authoritative sources of
information (and, in taking judicial notice, may refer
to sources of information such as textbooks).
Judicial Notice:
General and Specialised Knowledge
•Judge may use his general local knowledge but not
his specialised knowledge
•Justices may use their general local knowledge and
may use their specialised knowledge in interpreting
evidence, but cannot rely upon specialised
information provided by one of them as evidence
•Jurors may use their general knowledge and may
use their specialised knowledge in interpreting
evidence, but cannot rely upon specialised
information provided by one of them as evidence
A judge takes judicial notice of the fact that dogs
are commonly kept as domestic pets.
Which one is true
[a] The effect is that the judge must presume that
dogs are commonly kept as domestic pets unless
the presumption is rebutted on the balance of
probabilities.
[b] The effect is that the judge must presume that
dogs are commonly kept as domestic pets unless
evidence in rebuttal is adduced.
[c] The effect is that the judge accepts that dogs are
commonly kept as domestic pets and will not permit
evidence in rebuttal to be adduced.
ANSWERS
[a] The effect is that the judge must presume that
dogs are commonly kept as domestic pets unless
the presumption is rebutted on the balance of
probabilities.
[b] The effect is that the judge must presume that
dogs are commonly kept as domestic pets unless
evidence in rebuttal is adduced.
[c] The effect is that the judge accepts that dogs
are commonly kept as domestic pets and will not
permit evidence in rebuttal to be adduced.
(iii) is true