Evidence and disclosure - The burden and standard of proof

Learning Outcomes

This article explains the civil burden and standard of proof, including:

• distinguishing the legal (persuasive) burden from the evidential burden, and showing how each operates issue-by-issue across causes of action and positive defences;
• applying the maxim “he who asserts must prove” to typical SQE1-style civil claims, and identifying which party carries which burden at each stage of proceedings;
• examining when and how burdens shift at common law (res ipsa loquitur) and under key statutes such as the Civil Evidence Act 1968, s11; Equality Act 2010, s136; Misrepresentation Act 1967, s2(1), and relevant product liability provisions;
• stating and applying the civil standard of proof—the balance of probabilities—while recognising why inherently serious or improbable allegations demand more cogent evidence without raising the standard;
• analysing practical techniques for managing proof in litigation, including the strategic use of admissions, notices to admit, expert and documentary evidence, hearsay (with attention to weight), and adverse inferences from silence or missing evidence;
• strengthening exam technique by training you to pinpoint where the legal and evidential burdens lie in multiple-choice questions and fact patterns, and to predict how a court is likely to resolve disputed issues of proof.

SQE1 Syllabus

For SQE1, you are required to understand the civil burden and standard of proof and how they operate in practice, with a focus on the following syllabus points:

• 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).
• Positive defences that carry a burden on the defendant (e.g., contributory negligence; failure to mitigate).
• Statutory shifts and presumptions: Civil Evidence Act 1968, s11 (criminal convictions), Equality Act 2010, s136 (discrimination), Misrepresentation Act 1967, s2(1).
• Use of inferences and admissions to manage evidential burdens in practice.

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.

1. In a typical civil claim for breach of contract, which party initially bears the legal burden of proving the breach occurred?
   1. The Defendant
   2. The Claimant
   3. The Court
   4. Neither party
2. What is the standard of proof typically applied in civil litigation in England and Wales?
   1. Beyond reasonable doubt
   2. Clear and convincing evidence
   3. On the balance of probabilities
   4. Prima facie case

3. 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. These concepts operate issue-by-issue, and more than one burden may be live at the same time on different issues (for example, the claimant’s cause of action and a defendant’s positive defence).

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).

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. Burdens are issue‑specific: the claimant bears the legal burden on the essential elements of the cause of action, but if the defendant raises a positive defence (for example, contributory negligence), the defendant bears the legal burden on that defence.

It is important to distinguish between two types of burden: the legal burden and the evidential burden.

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.

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 on the applicable standard. In most civil claims, the claimant bears the legal burden of proving the elements of the cause of action (e.g., duty, breach, causation, and loss in negligence). The legal burden may, however, be reversed by statute in defined contexts.

The evidential burden is the obligation to adduce sufficient evidence on a particular issue to make it a live issue for the court. This burden can shift during proceedings. If the party with the legal burden establishes a prima facie case on an issue, the evidential burden may move to the opposing party to provide contrary evidence. Conversely, where a defendant advances a positive defence (e.g., contributory negligence), the defendant assumes both the legal burden to prove the defence and the evidential burden to adduce supporting evidence.

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.

Key Term: Adverse Inference
A conclusion a court may draw against a party who fails, without good reason, to call a witness, disclose a document, or explain the absence of evidence within their control. It does not change the legal burden but may affect whether the burden is discharged.

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 evidential burden (and, in specific statutory contexts, the legal burden) to shift to the opposing party.

Statutory Exceptions

• Civil Evidence Act 1968, s11: if a party to civil proceedings has been convicted of a criminal offence, proof of the conviction is admissible and is conclusive evidence that they committed the offence unless the party proves otherwise. The legal burden on that issue shifts to the convicted party to displace the effect of the conviction.
• Equality Act 2010, s136: where there are facts from which the court could conclude (in the absence of an adequate explanation) that discrimination has occurred, the burden shifts to the respondent to prove they did not discriminate.
• Misrepresentation Act 1967, s2(1): once a misrepresentation is established and loss is shown, the representor bears the burden to show they had reasonable grounds to believe (and did believe) the statement was true.
• Consumer Protection Act 1987 (product liability): while liability for a “defective product” is strict, a defendant relying on a statutory defence (e.g., development risks/“state of the art” defence) bears the burden of proving that defence.

Common Law Exceptions

The doctrine of res ipsa loquitur (‘the thing speaks for itself’) can assist claimants in negligence where:

• The accident’s precise cause is unknown.
• The thing causing the injury was under the defendant’s control.
• Such an accident ordinarily does not occur without negligence.

If these conditions are met, an inference of negligence arises. The evidential burden shifts to the defendant to provide a plausible non‑negligent explanation. Importantly, the legal burden of proving negligence remains with the claimant.

Key Term: Res ipsa loquitur
A common law inference of negligence arising from the nature of an accident, shifting the evidential burden to the defendant to rebut the inference; it does not transfer the legal burden.

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. A falling brick from scaffolding under XYZ’s control is an event that ordinarily would not occur without negligence. The evidential burden shifts to XYZ to show they exercised reasonable care or to provide a non‑negligent explanation. The legal burden ultimately remains on Paul.

Positive Defences and Other Burdens

Some defences introduce new factual issues. The defendant who asserts them typically bears the legal and evidential burdens on those issues.

• Contributory negligence: the defendant must prove the claimant failed to take reasonable care for their own safety and that this contributed to the damage.
• Volenti non fit injuria (consent): the defendant must prove the claimant consented to the risk.
• Failure to mitigate: the defendant must prove the claimant unreasonably failed to mitigate loss; the quantum is then reduced to the extent of the avoidable loss.
• Limitation: if the defendant pleads limitation, the claimant will usually need to prove that the claim is within time (e.g., by reference to accrual, date of knowledge, or an extension provision). The raising of the limitation defence places the issue in dispute; in practice, the claimant must adduce evidence showing the claim is not time‑barred.

Key Term: Contributory Negligence
A partial defence where the defendant proves the claimant’s own lack of reasonable care contributed to the damage, leading to a just and equitable reduction in damages.

Key Term: Limitation Defence
A defence that a claim is time‑barred. Once pleaded, the claimant generally needs to prove facts showing the claim is within time or falls within a statutory extension or postponement.

Worked Example 1.3

Scenario: In a road traffic claim, the defendant pleads that the claimant failed to wear a seatbelt and that this contributed to the injuries.

Question: Who bears the burden on contributory negligence?

Answer:
The defendant bears both the legal and evidential burdens to prove contributory negligence. If proved, the court reduces damages by a just and equitable percentage to reflect the claimant’s share in the damage.

Worked Example 1.4

Scenario: A breach of contract claim is issued just over six years after the alleged breach. The defendant pleads limitation.

Question: What happens to the burden on limitation?

Answer:
Having raised limitation, the issue is live. The claimant will generally need to prove the claim is in time (e.g., that the cause of action accrued later than asserted, that a relevant acknowledgment restarted time, or that a statutory postponement applies). If the claimant cannot show this on the balance of probabilities, the limitation defence will succeed.

Worked Example 1.5

Scenario: Tina sues Omar for assault. Omar was previously convicted in the Crown Court of assaulting Tina on the same occasion. Omar argues the criminal court “got it wrong”.

Question: How does s11 Civil Evidence Act 1968 affect the burden?

Answer:
Under s11, Omar’s conviction is admissible and treated as proof that he committed the offence unless he proves otherwise. The legal burden on that issue shifts to Omar to displace the effect of the conviction on the civil claim. If he cannot do so, the court may treat the conviction as establishing the intentional tort.

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).

If the evidence is in even balance, the party bearing the legal burden on that issue fails. In practice, the court evaluates all admissible evidence—oral, documentary, expert and, where relevant, hearsay—and weighs its reliability and cogency. Admissions and facts agreed between parties are not in issue and need not be proved.

Seriousness of Allegations

The standard of proof does not change according to the gravity of the allegation. Fraud, dishonesty, or other serious allegations are still proved on the balance of probabilities. However, courts recognise that inherently improbable events or allegations of serious wrongdoing will ordinarily require more cogent evidence before the court is persuaded that they are more likely than not. This is a matter of evidential weight, not a heightened standard.

Types of evidence matter. Documentary records, reliable contemporaneous notes, credible witness testimony tested in cross‑examination, and expert opinion within its proper field may significantly affect whether the civil standard is met. Hearsay is admissible in civil proceedings, but its weight may be less than direct evidence; the court will consider factors bearing on reliability, such as contemporaneity and the ability to test by cross‑examination.

Managing and Discharging the Burden in Practice

• Admissions and notices to admit: targeted use of requests to admit facts or the authenticity of documents reduces what must be proved at trial.
• Expert evidence: only where reasonably required; it can be decisive on technical issues (e.g., causation, valuation).
• Inferences from silence: where a party fails to call a key witness, disclose material documents, or explain a gap in the evidence that is within their control, the court may draw reasonable adverse inferences. This does not transfer the legal burden but may tip the balance.
• Hearsay: admissible with prior notice. Its weight depends on reliability factors; a party relying heavily on hearsay may face difficulty discharging a burden if more direct evidence is available but not produced.

Key Term: Civil Evidence Act 1968, s11 (Convictions)
A criminal conviction is admissible in civil proceedings and is treated as proof that the person committed the offence, unless the contrary is proved.

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 (e.g., Civil Evidence Act 1968, s11; Equality Act 2010, s136; Misrepresentation Act 1967, s2(1)) or assisted by common law inferences such as res ipsa loquitur.
• Defendants bear the burden on positive defences such as contributory negligence and consent; they also bear the burden to prove any reliance on statutory defences.
• The standard of proof in civil cases is the balance of probabilities—“more likely than not”.
• Serious allegations still apply the same standard; they typically require more cogent evidence to satisfy the balance of probabilities.
• Practical tools (admissions, expert evidence, inferences from absent evidence) and the weight afforded to hearsay can be critical in discharging or resisting burdens.

Key Terms and Concepts

• Burden of Proof
• Legal Burden
• Evidential Burden
• Balance of Probabilities
• Res ipsa loquitur
• Contributory Negligence
• Limitation Defence
• Civil Evidence Act 1968, s11 (Convictions)
• Adverse Inference