On the “balance of probabilities”
Dispute Resolution solicitor Georgina Farrer explains the standard of proof in civil cases.
Most people are familiar with the phrase, “beyond reasonable doubt.” This is what is known as the “standard or proof,” and it is the standard required in criminal matters.
The standard of proof is the legal burden on a person to establish the facts that support his case.
“Beyond reasonable doubt” is a very high standard of proof: essentially the court has to be convinced that there is “no doubt” that something is true. This has to be the case, as the consequences of a person being found guilty in a criminal case are usually much more serious than the potential consequences in a civil matter, which usually involve an order to pay money.
What about civil cases?
In civil cases the standard of proof is much lower.
This is the case because losing at trial will not end up with an event such as a life-long prison sentence.
The burden of proof is on the claimant, who must prove that on the balance of probabilities, his/her case is true. This means that the court must be satisfied that on the evidence, the occurrence of an event was more likely than not.
There is a very small difference between succeeding on the balance of probabilities and failing on the balance of probabilities. If the evidence is such that the court can say “we think it more probable than not,” the case succeeds, but if the probabilities are equal, the case fails.
For those who like working in numbers, expressing this in a percentage term means that if a judge concludes that it is 50% likely that the claimant’s case is true, then he/she fails, but should a judge conclude that it is 51% likely that the claimant is right then he/she will win.
A Supreme Court judge summed up the balance of probabilities test quite nicely, when he stated:
"It would need more clear evidence to satisfy [a judge] that the creature seen walking in Regent's Park was more likely than not to have been a lioness, than to be satisfied to the same standard of probability that it was an Alsatian."
For more information on dispute resolution or commercial litigation, contact solicitor George Farrer here.
About the author
Georgina is a Solicitor in the firm's Dispute Resolution team.