Report No. 69
Burden of Proof
Sections 101-104
I. Introduction
45.1. Introductory.-
Chapter 7 of the Act deals with the difficult but unavoidable question of "burden of proof". Though the provisions contained in the Act may need no change, an examination of the subject in some depth is necessary in order to clarify a few aspects.
45.2. The grammatical meaning of the expression "burden of proof" is simple.1 It is elementary that if a party asserts certain facts and seeks relief, the facts which he asserts must be proved. The court cannot, in general, take them for granted .2
1. Section 101, second para.
2. Section 101, first para.
45.3. Two meanings.-
The expression "burden of proof" is, however, used in two senses. It means (a) the burden of establishing a case, whether by preponderance of evidence (as in civil cases) or beyond reasonable doubt (as in criminal prosecutions); and (b) the duty or necessity of introducing evidence either to establish such a case or to meet evidence sufficient to constitute rebuttal of a prima facie case proved by the other party. When the expression is used in the first sense, the emphasis is on the suit or proceeding as a whole. When it is used in the second sense, the emphasis is on the stage at which the matter stands.
45.4. Where the Burden placed.-
Burden of proof in the first sense depends in a civil case, on the state of the pleadings. In a criminal case, it is always on the prosecution. Burden of proof in the second sense is on the party against whom the Court, at the time when the question is to be determined, would give the judgment, if no further evidence is introduced. Before evidence in the case commences, this burden rests on the party who has the affirmative of the issue; after evidence in the case is gone into, the burden of introducing evidence is always on the party who has to meet such a case.
45.5. Shifting.-
The first kind of burden never shift1-. The second kind of "burden of proof" refers to the duty of one party to produce sufficient evidence for a judge to call on the other party to answer. The incidence of this duty is determined by particular rules of evidence. This burden is described as the "evidential burden", the "burden of adducing evidence," or the duty "of passing the judge". Failure to discharge the first burden will cause the judge to decide against the proponent on that issue; failure to discharge the second will cause the judge to decide against the proponent without calling on his opponent.
1. Halsbury's, 3rd Edn., Vol. 15, pp. 267, 268, para. 489. 4 Nokes An Introduction to Evidence, 4th Edn., pp. 465-469.
45.6. Two meanings of burden of proof.-
The distinction is therefore commonly made by commentators on the law of evidence1 between the use of the term-(a) in the sense of the burden which lies throughout the trial of establishing a case-usually called the general burden of proof-and
(b) in the sense of the onus of producing evidence at any particular state during the trial.
1. Nokes an Introduction to evidene, 4th Edn., pp. 465-469.
II. On Whom Burden Lies
45.7. In most civil cases, the burden of proof in the first sense lies upon the plaintiff, since it is he who, in his plaint, asserts that certain facts are as stated in the plaint. However, it may be that the defendant admits the main facts set out in the plaint,1 but contends that there are other facts which provide an answer to some or all of the allegations of the plaintiff. In such a case, the general burden lies upon the defendant who must establish the truth of these facts.
1. Cf. section 103.
45.8. Second meaning.-
As regards the second meaning of "burden of proof" (in the sense of the onus of producing evidence), this lies at any time upon the party against whom the case would be decided if no further evidence were to be produced. As the case proceeds, this burden may shift to and from one party to the other as each side may produce a prima facie case in its favour, which can only be rebutted by fresh evidence from the opposite side. So too, when one party wished the court to believe any particular fact,1 the burden of proof as to that fact rests upon that party, unless it is provided by any law that the proof as to that fact lies upon any particular person. Moreover, the burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact2 is on the person who wished to give such evidence.
1. Cf. section 103.
2. Cf section 104.
III. He Who Asserts Must Prove
45.9. In legal proceedings, the general rule is that he who asserts must prove;1 this proposition is sometimes more technically expressed by saying that the burden of proof rests upon the party who substantially asserts the affirmative of the issue. In the absence of some rule requiring proof of an assertion, there may be harassment to the opposite party and waste of time of the Court.
1. Halsbury's, 3rd Edn., Vol. 15, p. 267, para. 48.
45.10. This rule is derived from the Roman Law,1 and is supportable not only upon the ground of fairness, but also upon that of the greater practical difficulty which is involved in proving a negative than in proving an affirmative. Th( affirmative of the issue, however, may be negative in form, involving the proof of a negative, such as the fact that goods were not consigned within a specified period,2 or that houses were not built according to specification,3 or that a transaction is, in reality, one different from what on its face it appears to be4of that a will ought not to be admitted to proof,5 or that a contract is not perpetual,6 or the omission to insure premises,7 or the assignment of premises without consent,8 or sale on premises without the 'lessor's consent in writing.9
1. Halsbury's, 3rd Edn., Vol. 15, p. 267, para. 48.
2. Calder v. Rutherfort, (1922) 3 Brod&Bing 302 (304).
3. Smith v. Davies, (1836) 7 C&P 307.
4. Nicol v. Vaughan, (1932) 6 Eli NS 104.
5. Bremar v. Freemun, (1857) 10 Moo PCC 306.
7. Doed, Bridger v. Whitehead, (1838) 8 Ad&El 571; Price v. Worwood, (1859) 4 H&N 512 (517).
8. E.g. Wedgwood v. Hart, (1856) 2 Jur NS 288.
9. Toleman v. Porbury, 1870 LRQB 288 (296).
45.11. Two kinds of burden.-
In applying the rule, however, regard must be had to the distinction between the burden of proof as a matter of substantive law or pleading, (the legal burden)1 and the burden of proof as a matter of adducing evidence during various stages of the trial.2 This distinction has already been adverted to.3
1. See (a) Emaunel v. Emmanuel, 1946 Probate 115: (1945) 2 All ER 494;
(b) Dunn v. Dunn, 1949 Probate 98 CA: (1948) 2 All ER 822 (Denning, J.).
(c) Tilley v. Tilley, 1949 Probate 240 CA: (1949) 2 All ER 1113.
(d) Lowndes v. Lowndes, 1950 Probate 223: (1950) 1 All ER 999.
2. See Huyton-with-Roby U.D.C. v. Hunter, (1955) 2 All ER 398 (400) CA.
45.12. The former burden is fixed at the commencement of the trial by the state of the pleadings or their equivalent, and is one that never changes under any circumstances whatever;1 and if, after all2 the evidence has been given by both sides, the party having this burden on him has failed to discharge it, the case should be decided against him.3
2. Halsbury's, 3rd Edn., Vol. 15, pp. 267-268, para. 489.
3. Pickun v. Thamas Insurance Co., (1878) 3 QBD 599 (600); Wakelin v. London and South Western Rail Co., (1866) 12 App Cas 41 HL. For the same rule in criminal trials, see Woolmington v. Director of Public Prosecution, 1935 AC 462 (HL); R. v. Stoddari, (1909) 25 ILR 612 (CCA).
45.13. Adducing evidence.-
The burden of proof in the sense of the burden of adducing evidence, is a burden which may shift continually throughout the trial, according as the evidence in one scale or the other preponderates.1-2
1. (a) Abrath v. North Eastern Rail Co., (1883) 11 QBD 440 (456) (per Bowen, P.);
(b) Pickup v. Thames Insurance Co., (1878) 3 QBD 594 (599, 600) (CA).
(c) Wakelin v. London and South Western Rail Co., (1886) 12 App Cas 41 (HL); R v. Stoddart, (1909) 25 TLR 612 (CCA).
2. Halsbury's, 3rd Edn., Vol. 15, p. 269, para. 492.
45.14. The latter burden has been judicially described1 as a provisional burden which is raised by the state of the evidence, from which the court may draw an inference one way or the other but is not bound to do so.
1. See Huyton-with-Hoby U.D.C. v. Hunter, (1955) 2 All ER 398 CA (400, 401) (per Denning,
45.15. All this may sound complex. The truth is that the phrase "burden of proof" embodies an abstract concept expressed in metaphysical form.1 The practical purpose which the rules perform in a civil case is to enable the court to frame issues and decide where the burden on each issue lies.
1. Nokes Codification of the Law of Evidence, (1956) 5 ICIQ 347, 361.