Burden and standard of proof in civil proceedings
Michael Stockdale
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Burden and standard of proof in Civil proceedings
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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.
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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.
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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.
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Consider which of these two propositions are true.
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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.
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Consider the scenario on this slide and decide whether C has discharged the legal burden of proof.
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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.
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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.
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Consider which one of the following two propositions is true.
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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.
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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.
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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.
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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.
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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.
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Consider which one of the two propositions is true.
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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.
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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.
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Consider whether this proposition is true or false.
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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.
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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.
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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.
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Which one of the following three propositions is true?
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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.
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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.
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Consider which one of the following propositions is true.
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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.