BURDEN & STANDARD OF PROOF

BURDEN & STANDARD OF PROOF

1. The legal burden

2. The Evidential Burden.

The legal burden is an obligation placed on a party to prove a fact in issue. Also, know as the persuasive burden and the burden of proof.

The evidential burden is the obligation on a party to adduce sufficient evidence to raise a fact in issue, that is to make a particular issue a live issue at trial.

The standard of Proof:

In a civil case, if the evidence is such that the Tribunal can say “ We think it more probable than not” The burden is discharged, but if the probabilities are equal, it is not. In the criminal cases, the standard of proof is behind a reasonable doubt.

The incidence of the Legal Burden:

The general rule at common law is that the legal burden on any fact in issue is on the party asserting and not denying. He who asserts must prove not he who denies. (Joseph Constantine Steamship line Ltd V Imperial Smelting Corporation Ltd) [1942] AC 154. The Claimant usually bears the legal and evidential burden of proving all elements of their claim. Similarly, the defendant bears the legal and evidential burden, of proving any defence and counterclaim against the claimant. 

Shifting the legal burden from one party to another can happen at common law if there is a rebuttable presumption of the law of the persuasive type. When the party is relying on the presumption, prove the primary fact is giving rise to the presumption. The legal burden shifts and the other side will then bear the legal burden to disprove the fact that will otherwise be presumed.

Evidential Burden: This is the responsibility to adduce sufficient evidence of a fact to allow the issue in question to go before the Tribunal of fact.