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The Burden and Standard of Proof The Burden and Standard of Proof



The Burden and Standard of Proof
The Burden and Standard of Proof

                                                           real evidence such as samples and other               “That degree is well settled. It must carry a
                                                           material objects produced for inspection by           reasonable degree of probability, not so high as
                  James B LONGBOTTOM                       the court or arbitral tribunal.                       is required in a criminal case. If the evidence is
                                                                                                                 such that the tribunal can say: ‘we think it more
                  Brian E Rawing & Associates Limited   The burden of adducing such evidence in a civil
                                                                                                                 probable than not’, the burden is discharged, but
                                                        case is generally borne by the party making a
                                                                                                                 if the probabilities are equal it is not.”
                                                        statement or bearing the burden of proof.
            ecently, the writer was involved in                                                                  Construction Disputes
                                                        Burden of Proof
            presenting to the employer’s
                                                                                                                 Applying these principles to a construction
            representative, several contractor’s        The burden of proof in a civil case will normally
                                                                                                                 dispute, a court or arbitral tribunal is left with
claims for disputed issues. The presentations           lie with the party making the claim or defence
                                                                                                                 having heard the evidence presented before
were very productive and enabled the                    to adduce sufficient evidence for the court or
                                                                                                                 them to weigh up, on a balance of probabilities,
employer’s representative to review various             tribunal to find in their favour. In a criminal trial,
                                                                                                                 the rival arguments on the facts, or law, and
documents referred to in the claim (e.g.                the burden of proof is borne by the prosecution.
                                                                                                                 decide which argument is preferred. This is
requests for information, site instructions,            If a party or the prosecution does not adduce
                                                                                                                 essentially a case of finding one version of the
correspondence, drawings, etc.) and then                sufficient evidence to support their case then
                                                                                                                 facts more likely than the other versions.
reach conclusions on the effects of each                they will lose the issue. Success, therefore,
disputed issue, whether it be a variation or a          depends on evidence or proof.                            When deciding issues of fact, the outcome will
cause of delay and / or disruption.                                                                              likely be influenced by the probate value or
                                                        What then is an appropriate standard of proof
                                                                                                                 weight attached by the court or arbitral tribunal
On one particular matter, when the writer               that a party has to satisfy?
                                                                                                                 to the evidence adduced by the parties. Some
particularised and explained the problems
                                                        Standard of Proof                                        types of evidence will bear more weight than
encountered by the contractor, the response
                                                                                                                 others (e.g. first hand oral testimony is of higher
from the employer’s representative was that he          In a criminal case, the prosecution is required
                                                                                                                 weight than hearsay or second hand evidence).
had to be satisfied “beyond reasonable doubt”           to satisfy the jury that the defendant’s guilt is
that the contractor’s case was correct.                 “beyond reasonable doubt.”                               In construction disputes, it is not uncommon to
                                                                                                                 find witnesses of fact with conflicting accounts
“Wrong” was the reply from the contractor’s             However, in civil cases, the standard of proof is
                                                                                                                 of events. These conflicts may be founded on
side. “You should be satisfied on the balance           much lower as a court or tribunal makes its
                                                                                                                 honest statements that are confused by
of probabilities”.                                      decision on a “balance of probabilities”.
                                                                                                                 recollections that have faded over time or,
So what then is the difference?                         The difference between the two standards was             a l t e r n a t i v e l y, s t r a i g h t f o r w a r d
                                                        summarised by Denning J in the English case of           misunderstandings of the truth or mis-
Burden of Adducing Evidence                             Miller v Minister of Pensions [1947] 2 All ER 372.       appreciation of a situation.
The first hurdle in any contested claim is to
                                                        Taking first the standard of proof to convict the        The same too can be said of experts who may
adduce sufficient evidence to persuade either
                                                        accused in a criminal case, Denning had this to say:     develop different opinions arising out of genuine
the court or arbitral tribunal that there is a case
                                                                                                                 beliefs or because the expert has lost sight of
to answer. If there is insufficient evidence, then      “That degree is well settled. It need not reach
                                                                                                                 objectivity. Either way, it is all too common for
there is no case to answer and the court or             certainty, but it must carry a high degree of
                                                                                                                 complex issues to become clouded by
tribunal would dismiss the case.                        probability. Proof beyond reasonable doubt
                                                                                                                 conflicting accounts of events and opinions.
                                                        does not mean proof beyond a shadow of a
In a typical construction dispute sufficient
                                                        doubt. The law would fail to protect the                 So where does this leave the litigants. Well, a court
evidence might include:-
                                                        community if it permitted fanciful possibilities         or arbitral tribunal is far more likely to rely on
   oral evidence of statements made by the              to deflect the course of justice. If the evidence        contemporaneous documents recorded by people
   parties and their witnesses, including               is so strong against a man as to leave only a            at the time of an event than on recollections made
   technical experts in quantum, programming            remote possibility in his favour which can be            in oral evidence some years after the event. The
   and the like;                                        dismissed with the sentence “Of course it is             more contemporaneous records that support a
                                                        possible but not in the least probable”, the case        party’s case, the more reliable its case will appear
   documentary evidence produced for
                                                        is proved beyond reasonable doubt; nothing               before a court or arbitral tribunal.
   inspection by the court or arbitral tribunal
                                                        short will suffice.”
   such as correspondence, minutes of                                                                            For further information please contact
   meetings, photographs, drawings, plans,              Turning then to the standard of proof for a civil
   instructions, labour returns, invoices and           case, Denning had this to say:                           []
   other contemporaneous records; and

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