BURDEN AND STANDARD OF PROOF IN CIVIL PROCEEDINGS

1. BURDEN AND STANDARD OF PROOF INCIVIL PROCEEDINGS

2. 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

3. 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

4. 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)

5. (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. 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?

6. 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

7. 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

8. ANSWERSHas C discharged the legal burden of proof yes/no?No, C has not

9. 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

10. 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.

11. [a] Edna must prove her claim beyond reasonable doubt.[b] Edna must prove her claim on the balance of probabilities. ANSWERS [b] is true

12. 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

13. 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

14. 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.

15. 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

16. 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.

17. 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.

18. 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

19. 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)

20. ANSWERS The judge should presume that the traffic lights were working properly(true or false) true.

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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.

27. 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

28. 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.

29. 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?)

30. ANSWERS The judge must presume negligence unless Sid disproves this beyond reasonable doubt (true or false?) FALSE

31. 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).

32. 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

33. 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.

34. 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