Module 3 Chapter 3: Burden and Standard of Proof in Law

Burden and Standard of Proof

• It is essential to determine who bears the burden of proof and the standard required to discharge it in any dispute
• Chapter information is useful for contractual/tortious claims in arbitration and other areas of law
• Cases where no evidence is required, presumptions, judicial notice, and admissions are covered
• Concludes with issues relating to the burden of proof in the context of typical situations in arbitrations

Learning Objectives

• Explain the difference between legal and evidential burdens
• Identify and describe the standard of proof required
• Explain presumptions, judicial notice, and admissions

Burden of Proof

• It is the obligation to prove facts in issue
• There are two main types: legal and evidential burdens
• It is not always easy to identify the burdens that judges deal with
• This section clarifies the area as far as possible

Legal Burden

• It is the obligation on a party to prove a fact in issue
• If the party bearing the burden fails to prove the facts, they will not succeed
• Whether the burden is discharged is decided at the end of the case
• Most cases involve multiple issues, with the legal burden distributed among the parties
• In a negligence claim where the respondent alleges contributory negligence, the referring party bears the legal burden on negligence, and the responding party bears it on contributory negligence

Incidence of the Legal Burden

• The general rule in civil cases is that 'he who asserts must prove'
• In negligence claims, the referring party must prove duty, breach, and causation
• The responding party holds the legal burden of proving defenses like consent or contributory negligence which go beyond the simple denial

Statute

• Legislation can fix the incidence of the legal burden
• Under the French Civil Code, an innocent party must prove they would not have entered a contract but for deception in cases of misrepresentation
• Under Section 2(1) of the Misrepresentation Act 1967 (E&W), a representor must prove representations were true to avoid liability

Contract Terms

• The legal burden can be fixed by contract terms in written contract and insurance disputes
• Without an express agreement, it becomes a matter of construction for the court
• In the case of Munro Brice v War Risks Association [1918], the court found the defendants bore the burden of proving the loss fell within the war hostilities exception, and they failed to do so
• If a claimant relies on a proviso, they bear the burden of proving the facts
• In The Glendarroch, the plaintiff brought an action in negligence for the non-delivery of goods

Evidential Burden

• Also referred to as the burden of adducing evidence
• Involves adducing enough evidence to raise an issue for the court's consideration
• A party may have an evidential burden without having the legal burden
• To determine if the legal burden has been discharged, the judge considers all presented evidence, whereas the evidential burden is considered based on the particular evidence relevant to the issue

Operation of the Burdens

• In the case of Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd [1942], a ship was unable to sail because of a boiler explosion
• The charterers claimed damages from the owners, who argued the contract was frustrated
• The charterers then argued the explosion was not caused by the owner's fault or negligence
• The owners argued it was the charterers responsibility to prove there was some default or negligence

Analysis of the Burdens

• The charterers carried the legal burden of proving the ship did not arrive
• The owners carried the legal burden of proving the frustrating event (explosion)
• The charterers had to prove the explosion was caused by the owners' default or negligence
• The owner had to discharge evidential burden to show an explosion and its effect, before the charterer had to call evidence regarding the cause
• All issues were linked; the second was irrelevant unless the first was proved, and the third was irrelevant unless the second was proved
• The House of Lords held that the charterers failed to establish affirmatively that the owners had been negligent, so the charterers did not discharge their burden

Arbitration Burden

• The legal burden of proof is imposed by law to prove facts in issue
• Arbitrators need to show care in situations where several facts are in issue, because the legal burden is often distributed between the parties
• The party making the claim (claimant) has the legal burden of proving a contract, its breach, and any resulting loss
• The respondent has the legal burden of proving a defense

Allegations

• Allegations in negative terms must be considered carefully
• For a claim payment, the respondent must prove the claimant did not properly carry out the work
• Arbitrators must look carefully at situations like this

Standard of Proof

• The standard of proof sets the level of proof required
• There is no unanimously recognized standard of proof in international arbitration
• often considered 'balance of probability', 'preponderance of the evidence', or "more likely than not," standards that do not rise to ‘beyond all reasonable doubt’

Arbitral Tribunals

• Arbitral tribunals refer to applicable substantive national law to determine the applicable standard of proof
• Standard is often similar, even though standards vary

Proof Standards in Legal Systems

• In common law, the party claiming damages must meet the 'balance of probabilities' test
• Under Swiss law, the regular standard of proof (Regelbeweislast) refers to the judge’s or arbitrator’s inner conviction, with no serious doubts about its existence
• Some civil jurisdictions have no defined standard and grant judges extensive leeway such as under French law
• Under German law, the German Code of Civil Procedure grants full discretion to judges

Demonstrating Damages

• The standard of proof requires establishing the existence of loss and causation
• Finding preponderant probability of damages and their extent is sufficient
• Evidence must be more convincing than the other side
• Judges determine how much more convincing based on the rules of law
• In Miller v Ministry of Pensions Lord Denning described this civil standard as "we think it more probable than not"

Objective Standards

• There will be variance depending on the seriousness of allegations
• In Hornal v Neuberger Products Ltd, Morris LJ stated that the more serious the allegation, the more cogent is the evidence required
• Where there is an allegation of a crime in civil proceedings, fraud, the standard of proof is on the balance of probabilities, but the degree of proof required is higher, and commensurate with the occasion
• An arbitrator must not apply a hurdle greater than that applied in civil proceedings

Criminal and Civil Standard of Proof

• A good example is the O.J. Simpson trials
• In the criminal trial, he was found not guilty because his guilt was not proven 'beyond reasonable doubt'
• In the civil trial, he was found guilty because the standard of proof required was 'on the balance of probabilities'
• An arbitrator cannot step outside his remit and base a decision on own knowledge, parties must be allowed to comment
• Depending on law, the arbitrator may be able to investigate further but the options are limited if no time is available

Rejecting Enquiries

• If the referring party refuses an extension of time for enquiries, an arbitrator could infer a unfavorable answer
• Procedural fairness means the parties must know, and can act on the outcome
• The arbitrator must not prejudice either party, or go beyond their remit or the award can be challenged

Facts and Evidence

• In issue facts and relevant facts need to be proven using evidence to the appropriate standard
• Facts that do not require proof will be presumed in the parties' favour
• No evidence to prove the fact, which is judicially noticed or formally admitted

Presumptions Operations

• Presumptions work by allowing the court to draw a conclusion when no evidence is adduced to rebut the presumption(s)
• These are based on common sense and public policy
• Example: In Mahon V Osborne, an accident happened out the surgeons negligence because a swab was found after the operation
• Other presumptions are illogical (e.g. a person is presumed dead after not being heard of for seven years)

Judicial Notice

• Certain matters are so clearly established that they cannot be seriously disputed
• Courts are prepared to take judicial notice of some facts and will not require them proved
• Examples include: R v Luffe [1907] – 'A fortnight is too short a period for human gestation', and Dennis v White [1916] – 'The streets of London are crowded and dangerous.', and Huth v Huth [1915] – ‘A postcard is a sort of document that might be read by anyone!’
• In Burns v Edman – ‘The life of a criminal is an unhappy one.’
• An arbitrator can use information that is a matter of general knowledge in reaching his decision without telling the parties
• Whether an arbitrator should take 'judicial notice' of a fact depends on the parties' agreement

Formal Admissions

• A fact which is formally admitted will cease to be a fact in issue, so evidence is not required to prove it
• In arbitration, the parties' statements of case usually follow the normal conventions of legal pleading
• A statement of defense ensures every allegation is identified and responded to
• Alleged fact is accepted, unless there is a denial
• An experienced arbitrator will resist attempts to persuade him into accepting rules of pleading, but must be cautious
• The arbitrator must not favor one party or the other in clarification