Burden and standard of proof in civil proceedings
Michael Stockdale
Track/Slide 1
Burden and standard of proof in Civil proceedings
Track/Slide 2
In the context of civil proceedings, the party who raises an issue bears the
legal burden of proving that issue. Thus, for example the claimant has to
prove the elements of his claim and the defendant has to prove those
defences which he relies on which raise new issues, i.e. issues that weren’t
raised by the claimant. Where, however the defendant relies upon a defence,
which merely amounts to a denial of the claimant’s claim or issues raised
thereby, this does not impose any legal burden upon the defendant.
Track/Slide 3
Where a party bears the legal burden of proving an issue in civil proceedings,
that party may also be said to bear an evidential burden in that the party, in
order to have a chance of success, will be required to adduce evidence
sufficient to raise a prima facie case.
If the party does adduce such evidence, this does not of course guarantee
that he will necessarily successfully discharge the legal burden of proof to the
standard required by law, in that of course it’s open to the other party to
produce evidence in rebuttal. A related point is that a civil court hearing a
claim without a jury will not normally entertain a submission of no case to
answer unless the defence elect to offer no evidence, and so therefore,
where the defence do submit no case to answer in a civil trial, they do so in
the knowledge that if a submission fails, the claimant will succeed and
consequently, in a civil trial, unlike a criminal trial, it is potentially a high-risk
strategy for the defence to make a submission of no case to answer.
Track/Slide 4
The standard of proof in civil proceedings is proof on the balance of
probabilities. In order to attain this standard it is not sufficient for a party
merely to adduce evidence which is more persuasive than that adduced by
the other party. So it isn’t the case of the party who puts forward the best case
automatically winning. Rather, the party who bears the legal burden of proof
must persuade the judge that that party’s case is more probably true than not,
i.e. 51% is what is required. There are some circumstances in which statute or
the common law may however impose proof to the criminal standard, i.e.
proof beyond reasonable doubt, in the civil context. An example of this is
provided by the application of the criminal standard in the context of civil
contempt of court.
Track/Slide 5
Consider which of these two propositions are true.
Track/Slide 6
Proposition 1 suggests the claimant must prove the defendant’s negligence on
the balance of probabilities. That is clearly true. The claimant has raised the
issue of the defender’s negligence and the party to a civil trial who raises an
issue bears the legal burden of proving that issue, the requisite standard of
proof being proof on the balance of probabilities. The second proposition
suggests that it is for the defendant to prove on the balance of probabilities
both that she was not using her mobile phone at the time of the accident and
also that the claimant crossed the road without looking. The first half of that
proposition is clearly wrong, because in asserting that she was not using her
phone at the time of the accident, the defendant is merely denying something
which was raised by the claimant, and must therefore be proved by the
claimant. But the second part of the proposition would have been true, had it
been a separate proposition, because clearly the defendant did raise the
defence of contributory negligence. The defendant suggested the claimant
had crossed the road carelessly and it would be for the defendant to prove
contributory negligence on the balance of probabilities. So proposition 1 is
correct. Proposition 2 is partially correct but partially incorrect and therefore
overall proposition 2 must be regarded as being wrong.
Track/Slide 7
Consider the scenario on this slide and decide whether C has discharged the
legal burden of proof.
Track/Slide 8
Here, C’s case is based upon very weak evidence. His assertion that several
years earlier he once noticed a loose tile on the floor in one corner of the
workshop. D adduces no evidence at all so clearly C’s very weak case is
stronger than D’s non-existent defence. Nonetheless C has failed to discharge
the legal burden of proof to the standard required by law, because C was
required to prove his case on the balance of probabilities, i.e. to show that his
assertions were more probably true than false. Since C’s case is very weak, is
very unlikely to be true, he has failed to discharge the legal burden of proof.
The fact that his case is stronger than a non-existent defence case does not
mean that he has succeeded because he has failed to satisfy the standard
required by law.
Track/Slide 9
Sometimes in civil proceedings, allegations of a quasi-criminal nature may be
brought. For example, where civil proceedings for damages allege that the
defendant murdered or raped or committed some other serious criminal
offence. In such circumstances, the requisite standard of proof remains the
civil standard of proof on the balance of probabilities rather than the higher
criminal standard of proof beyond reasonable doubt. This being said, the
approach the judge should take in such a civil case is that the more serious
the allegation, the less likely it is to be true and the stronger the evidence that
is required to persuade the judge that it probably is true, the idea being, for
example, that a man is more likely to drive carelessly than to commit a rape or
a murder, and therefore that stronger evidence will be required to persuade
the court that such a man probably did commit a rape or a murder than would
be required to persuade a court that he probably did drive carelessly.
It may be that in certain contexts where allegations are very serious, the
strength of evidence required by the civil standard may virtually or effectively
equate with that which would be required in criminal proceedings, but that
being said, it is clear that it is the civil standard of proof on the balance of
probabilities rather than the higher criminal standard remains applicable,
though in certain contexts, for example in relation to anti-social behaviour
orders, it has been held that to make the task of magistrates easier, they
should, even though these proceedings are civil, apply the higher criminal
standard. On the other hand, however, the family courts have made clear that
where a family judge is faced with serious allegations, it is still the civil
standard that should be applied, though taking into account, as was indicated
above, the seriousness of the allegation, and therefore requiring an
appropriate strength of evidence to persuade the court that the allegation is
probably true.
Track/Slide 10
Consider which one of the following two propositions is true.
Track/Slide 11
Here we have an allegation of rape brought in the context of civil proceedings
for damages, and quite clearly, the correct proposition is B. The claimant must
prove her claim on the balance of probabilities, the civil standard of proof, not
beyond reasonable doubt, which is the criminal standard. That having been
said, this is a very serious allegation and the judge will clearly want pretty
cogent evidence to persuade him that the allegation is probably true.
Track/Slide 12
Sometimes the admissibility of evidence will depend upon the resolution of a
question of fact, i.e. it will be necessary for a party to prove a particular fact in
order to establish that evidence is admissible. Where this is the case, the
burden of proving the relevant fact will be born by the party who wishes to
adduce the relevant evidence, the standard of proof, being a civil case, will be
proof on the balance of probabilities.
Track/Slide 13
There are a variety of rules that are termed presumptions. The first category
comprise rules of law which concern the incidence of the burden of proof. For
example, in the context of criminal proceedings, the Woolmington principle is
the general rule that the burden of proof is born by the prosecution. On the
presumption of sanity, is the rule that the legal burden of proving the defence
of insanity is born by the accused. Neither of these rules are true
presumptions and the term presumption is just used as a title by which to
describe them. The true presumptions are rebuttable presumptions of law,
which we will consider below. Also termed presumptions are presumptions of
fact and irrebuttable or conclusive presumptions of law, and again we will
consider both of these concepts below.
Track/Slide 14
Rebuttable presumptions of law are rules of law created either by the common
law or by statute, under which, if a party to legal proceedings proves a primary
fact, the court must also presume that a presumed fact is also proved unless
the presumption is rebutted by evidence adduced by the other party. A
rebuttable presumption of law may either impose a legal burden on the other
party, these are sometimes known as persuasive presumptions, or may
impose an evidential burden on the other party, sometimes known as an
evidential presumption.
Track/Slide 15
The effect of a persuasive presumption is essentially to shift the legal burden
of proving a fact from one party to the other. The party against whom the
presumption operates will be required to adduce evidence sufficient to
discharge the burden of rebutting the presumption, the standard of proof
normally being proof on the balance of probabilities in the context of civil
proceedings, although there are some presumptions in the civil context which
traditionally did require proof beyond reasonable doubt to in order to rebut
them. An example of a persuasive presumption is provided by section 11 of
the 1968 Civil Evidence Act, which we consider in more detail in a different
PowerPoint presentation.
Track/Slide 16
Consider which one of the two propositions is true.
Track/Slide 17
The example concerns section 11 of the 1968 Civil Evidence Act. The effect of
the section is to make previous convictions admissible in civil proceedings,
where they are relevant to an issue in the civil proceedings and provided that
they are subsisting, i.e. that they have not been quashed on appeal. Where
the section operates, its effect is to give rise to the presumption that the
person convicted committed the offence of which they were convicted. This is
a rebuttable presumption, so therefore the other party is entitled to produce
evidence to try to prove on the balance of probabilities that the person
convicted did not commit the relevant offence. So here, in the context of the
civil negligence claim, the defendant does have a relevant conviction for
careless driving based on the very facts of the accident which has led to the
civil claim. The first proposition suggests that the judge must presume that the
defendant committed the offence and that the defendant is not entitled to
adduce evidence to rebut this presumption. That is clearly incorrect because
the presumption is a rebuttable presumption.
The second proposition suggests the judge must presume the defendant
committed the offence of which he was convicted, unless the defendant
proves on the balance of probabilities that this was not so. This is clearly
correct. It is a rebuttable presumption and therefore, if the defendant can
persuade the court on the balance of probabilities that she did not commit the
offence of which she was convicted, the presumption will be rebutted and
therefore proposition B is correct.
Track/Slide 18
Some rebuttable presumptions of law take the form of evidential
presumptions, that is they do not shift the legal burden of proof from one party
to another but when they operate, the other party must adduce sufficient
evidence to rebut the presumption. in which the legal burden of proving the
relevant fact remains on the first party, who adduced evidence of the primary
fact. For example, there is a presumption at common law that machines,
which normally work properly, were working properly at a given time. For
example, the issue might be whether traffic lights were working properly at the
time of an accident. The court will presume that the lights were working
normally at the time of the relevant accident unless there is evidence to the
contrary.
Track/Slide 19
Consider whether this proposition is true or false.
Track/Slide 20
Here, since there is no evidence to suggest that the lights were not working
properly at the time of the accident, the court will presume at common law that
they were working properly. If, however, there was evidence before the court
suggesting that the lights had not been working properly, then the
presumption would be rebutted.
Track/Slide 21
In the context of criminal proceedings, where the prosecution bear the burden
of rebutting a rebuttable presumption of law, which imposes a legal burden of
proof upon them, they must do so to the criminal standard, i.e. proof beyond
reasonable doubt, whereas, where the defence bear the legal burden of
rebutting such a presumption, they will operate at most to the lower balance of
probabilities standard. But that will only be where the presumption falls within
an exception to the Woolmington principle, because the normal rule in a
criminal trial is that the facts in issue must be proved by the prosecution. And
so where a presumption does not form an exception to this rule, the most that
the defence will be required to do to rebut a presumption will be to adduce
sufficient evidence to do so, i.e. the presumption will merely impose an
evidential burden. Indeed, even where statute appears to impose a legal
burden of proof upon the accused, if this would have the effect of violating
article 62 of the convention, it may be that the court will have to read the
provision down as merely imposing an evidential burden upon the accused,
i.e. that the accused will only have to adduce sufficient evidence to rebut the
presumption, the legal burden of proving the relevant fact then remaining
upon the prosecution. For further details of the Woolmington principle and of
the significance of article 6 in the context of the burden and standard of proof
in criminal proceedings, see the Criminal Burden in Standard of Proof
PowerPoint presentation.
Track/Slide 22
Presumptions of fact are not true presumptions because they do not oblige a
court to presume the existence of a fact. Rather, they are inferences of fact
that a court may draw in the context of the existence of another fact, but is not
obliged to draw, and consequently they don’t impose either a legal or an
evidential burden upon a party. For example, under section 8 of the 1967
Criminal Justice Act , a court or jury is not bound to infer that a person
intended or foresaw a result of his actions that 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.
Track/Slide 23
Which one of the following three propositions is true?
Track/Slide 24
Here we are dealing with the presumption of fact. The jury is entitled to infer
that Colin did intend to shoot Stan, but is not obliged to do so. Therefore
proposition A is incorrect in suggesting the jury must presume this fact, unless
it is rebutted by the accused. Proposition B is incorrect because it again
suggests that the accused bears a legal burden of rebutting the presumption.
But C is correct because it rightly suggests that the jury are entitled to draw
this inference, but they are not obliged to do so.
Track/Slide 25
The final type of presumption is the irrebuttable or conclusive presumption of
law. Again, in a sense this is not a true presumption because there is no
possibility of rebuttal. Rather, such a presumption is a rule of law, which
obliges the court to conclusively presume that the presumed fact exists upon
proof of the primary fact, i.e. the party against whom the presumption
operates is not entitled to adduce evidence in rebuttal. An example is provided
by section 13 of the 1968 Civil Evidence Act, which we consider in more detail
in a different PowerPoint presentation.
Track/Slide 26
Consider which one of the following propositions is true.
Track/Slide 27
The example concerns section 13 of the 1968 Civil Evidence Act. Essentially
the effect of this provision is that in the context of defamation proceedings,
where it is established that the claimant has got a relevant and subsisting
previous conviction, the court must presume that he committed the offence of
which he was convicted and the claimant is not entitled to adduce evidence in
rebuttal, i.e. the presumption is irrebuttable. Therefore, proposition A must be
incorrect because it suggests that the claimant would have a possibility of
rebutting the presumption. For the same reason, proposition B is also
incorrect. Proposition C looks correct but the trick in the question is in fact that
the conviction was quashed on appeal. Therefore it is not a subsisting
conviction The defendant has not established a primary fact and the
presumption does not operate, so in fact all three propositions are untrue. If
the conviction had been a subsisting conviction, however, then proposition C
would have been true as the primary fact would have been established and
the court would have been required to presume that Victor had committed the
offence. The presumption would have been irrebuttable in such
circumstances.
Track/Slide 28
It is often quite difficult to work out exactly when a common law presumption
does in fact operate, and when it does so, to determine exactly what its effect
is. Consider for example the presumption of negligence that arises essentially
where the claimant proves that a thing was under the defendant’s
management, that the action that occurred was of a type that would not
normally occur if proper care was taken by those who were managing the
thing at the relevant time. There are some authorities to suggest that this
presumption imposes a legal burden of proof on the defendant, but the better
view is that is probably not the case. There is some authority to suggest that
this presumption imposes an evidential burden on the defendant and this
maybe correct. There is some authority to suggest it is merely a presumption
of fact . What can be said is that in practice, when a judge is faced with such a
situation and there is no explanation or no adequate explanation put forward
by the defendant for the accident in question, it is certainly likely that the
claimant will be successful.
Track/Slide 29
Is the following proposition true or false?
Track/Slide 30
The proposition is clearly false. Even if this presumption of negligence is one
that does impose a legal or an evidential burden of proof upon the defendant
in order to rebut it, which is unclear, the most that would be required in the
civil context would be proof upon the balance of probabilities. Therefore, in
suggesting that proof beyond reasonable doubt would be required to rebut the
presumption, the proposition is certainly false. But it may indeed be this
presumption is merely one of fact, in which case it won’t shift either legal or
even evidential burden of proof in reality. As I said, this is not clear. What is
clear is the proposition is certainly wrong in suggesting that this presumption
may impose the criminal standard of proof.
Track/Slide 31
Sometimes a judge may take judicial notice of a fact, or may direct a jury to do
so. For example, if an issue in a civil trial was whether a dog is commonly kept
as a domestic pet, the judge would not need to hear evidence on that issue.
He would take judicial notice of the fact from his personal knowledge and
would not permit the parties to adduce evidence in relation to it. Equally, a
judge may sometimes in taking judicial notice make use of an information
source like a text book or an encyclopaedia. For example, in deciding what
the capital of a particular country was, if that was relevant, the judge could
refer to an atlas. At times a judge may actually hear an expert witness before
taking notice of a particular fact, for example in one case the gestation period
of a camel.
Track/Slide 32
A judge is entitled to rely upon on his general local knowledge but not his
specialised knowledge. In other words, if a judge happens to be a qualified
doctor, he should not make use of his medical knowledge, but rather should
rely upon the expert evidence of the medical witnesses called by the parties.
Magistrates can also use their general local knowledge and can also rely on
their specialised knowledge in interpreting evidence but should not make use
of it in actually adding to the evidence before the court. So a magistrate who is
a qualified doctor can use his medical knowledge in trying to interpret
evidence of medical witnesses, but should not add to their evidence. Again
jurors can use their general local knowledge, and again can use their
specialised knowledge in interpreting evidence, but should not use it to add to
the evidence before the court.
Track/Slide 33
Consider which of the following three propositions is true.
Track/Slide 34
The first proposition suggests that the judge, having taken judicial notice of
the fact that dogs are commonly kept as domestic pets, must presume that
this is the case unless this presumption is rebutted. That is clearly incorrect
because we are not dealing here with a rebuttable presumption of law, but
rather with the taking of judicial notice. The second proposition again is
incorrect in again trying to equate the taking of judicial notice with the
operation of irrebuttable presumption of law, in this case an evidential
presumption. The third proposition is correct. It properly describes the effect of
the taking of judicial notice, namely that the judge, having taken such notice of
the relevant fact, will not permit evidence in rebuttal to be adduced.