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 Ds 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 Ds 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
[b] is true
on the balance of probabilities.

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
(MNaghten), 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

Ds car collides with Cs 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 Stans
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 defendants
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