Learning Outcomes
This article outlines the fundamental principles of the burden and standard of proof within civil litigation in England and Wales. After studying this material, you should be able to identify which party bears the burden of proving facts in issue and the standard to which those facts must be proven. You will also understand the distinction between the legal and evidential burden and recognise key exceptions where the burden may shift. This knowledge is essential for applying evidential rules correctly in SQE1 scenarios.
SQE1 Syllabus
For SQE1, you need a practical understanding of how the burden and standard of proof operate in civil claims. You should be prepared to analyse scenarios and determine which party must prove specific facts and the required level of proof. Key areas for revision include:
- The general principle that the party asserting a fact bears the burden of proving it.
- The distinction between the legal burden and the evidential burden.
- The standard of proof in civil claims: the balance of probabilities.
- How the seriousness of an allegation might affect the evidence required.
- Common situations where the burden of proof might shift (e.g., res ipsa loquitur or statutory provisions).
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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In a typical civil claim for breach of contract, which party initially bears the legal burden of proving the breach occurred?
- The Defendant
- The Claimant
- The Court
- Neither party
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What is the standard of proof typically applied in civil litigation in England and Wales?
- Beyond reasonable doubt
- Clear and convincing evidence
- On the balance of probabilities
- Prima facie case
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True or False: The evidential burden can shift between parties during a trial, but the legal burden generally remains with the party who asserted the fact.
Introduction
In any civil dispute reaching court, the parties will present evidence to support their version of events. Two fundamental concepts govern how this evidence is evaluated: the burden of proof and the standard of proof. The burden of proof determines which party has the responsibility to prove a particular fact. The standard of proof sets the level of certainty the court must reach before it can accept a fact as proven. A clear understanding of these principles is essential for understanding how civil claims are decided.
The Burden of Proof
The general rule in civil litigation is often summarised by the maxim: "he who asserts must prove". This means the party putting forward a particular allegation or fact in issue usually carries the responsibility of providing sufficient evidence to convince the court of its truth.
Key Term: Burden of Proof
The obligation on a party in legal proceedings to prove a disputed assertion or charge. In civil cases, this usually falls on the party making the allegation (typically the claimant).
It is important to distinguish between two types of burden: the legal burden and the evidential burden.
Legal and Evidential Burden
The legal burden (or persuasive burden) is the overall obligation on a party to prove the facts essential to their case for the entirety of the proceedings. In most civil claims, the claimant bears the legal burden of proving the elements of their cause of action (e.g., duty, breach, causation, and loss in negligence). This burden does not shift during the trial.
Key Term: Legal Burden
The obligation placed on a party to prove a particular fact in issue to the required standard. This burden typically remains fixed on one party throughout the case.
The evidential burden, on the other hand, is the obligation to adduce sufficient evidence on a particular issue to make it a live issue in the case, requiring consideration by the court. This burden can shift between the parties during the trial. For instance, once the claimant presents enough evidence to suggest a fact is true (a prima facie case), the evidential burden may shift to the defendant to produce evidence to rebut it.
Key Term: Evidential Burden
The obligation to produce sufficient evidence on a point to make it a live issue worthy of consideration by the court. This burden may shift between parties during the trial.
Worked Example 1.1
Scenario: Clara sues David for damages, alleging David negligently drove his car and collided with hers. David defends the claim, denying negligence.
Question: Who bears the legal burden of proving David was negligent?
Answer: Clara, the claimant, bears the legal burden of proving, on the balance of probabilities, that David breached his duty of care and caused her loss. David does not have to prove he was not negligent; Clara must prove he was.
Shifting the Burden
While the legal burden generally remains fixed, certain circumstances can cause the burden (usually the evidential burden, but sometimes the legal burden in specific statutory contexts) to shift to the opposing party.
Statutory Exceptions
Some statutes explicitly place the burden of proving certain facts on the defendant. For example, under some consumer protection or discrimination laws, once the claimant establishes certain preliminary facts, the burden may shift to the respondent to prove that their actions were lawful or non-discriminatory.
Common Law Exceptions
The doctrine of res ipsa loquitur ('the thing speaks for itself') is a key common law example. It applies in negligence cases where:
- The cause of the accident is unknown.
- The thing causing the injury was under the defendant's control.
- The accident is one that would not normally occur without negligence.
If these conditions are met, an inference of negligence arises, shifting the evidential burden to the defendant to show they were not negligent.
Worked Example 1.2
Scenario: Paul is walking past a building site when a brick falls from scaffolding, injuring him. There were no witnesses to exactly how the brick fell, but the scaffolding was erected and managed solely by XYZ Builders Ltd.
Question: How might the burden of proof operate here?
Answer: Paul bears the initial legal burden. However, he may rely on res ipsa loquitur. The falling brick (cause unknown), from scaffolding under XYZ's control, suggests negligence wouldn't normally occur without it. This shifts the evidential burden to XYZ Builders Ltd to provide an explanation showing they exercised reasonable care. The legal burden ultimately remains on Paul.
The Standard of Proof
Once it is established which party bears the burden of proof, the next question is the standard to which they must prove the facts.
In civil proceedings, the standard of proof is the balance of probabilities.
Key Term: Balance of Probabilities
The standard of proof in civil cases. The court must be satisfied that the occurrence of a fact was more probable than not (i.e., more than 50% likely).
This means the court must be persuaded that the facts alleged by the party bearing the burden are more likely than not to be true. If the evidence is equally balanced, the party bearing the burden will have failed to discharge it, and their assertion will not be proven.
Seriousness of Allegations
While the standard of proof remains the same (balance of probabilities) regardless of the seriousness of the allegation (e.g., fraud or dishonesty), the courts have recognised that the more serious the allegation, the stronger or more cogent the evidence needed to persuade the court that the allegation is true on the balance of probabilities. This is not a change in the standard itself, but a practical recognition that compelling evidence is naturally required to establish the probability of serious misconduct.
Exam Warning
Do not confuse the civil standard ('balance of probabilities') with the criminal standard ('beyond reasonable doubt'). The civil standard requires a lower level of certainty. In SQE1 questions, ensure you apply the correct civil standard.
Key Point Checklist
This article has covered the following key knowledge points:
- The burden of proof in civil cases generally rests on the party making an assertion (usually the claimant).
- There is a distinction between the legal burden (the overall requirement to prove the case) and the evidential burden (the requirement to produce evidence on an issue), which can shift.
- The burden of proof can sometimes be reversed or shifted by statute or common law doctrines like res ipsa loquitur.
- The standard of proof in civil cases is the balance of probabilities – it must be shown that something is more likely than not to have occurred.
- While the standard remains the same, more serious allegations require more cogent evidence to satisfy the balance of probabilities.
Key Terms and Concepts
- Burden of Proof
- Legal Burden
- Evidential Burden
- Balance of Probabilities
