Presumptions And Burdens
| Published date | 01 July 1949 |
| Date | 01 July 1949 |
| DOI | http://doi.org/10.1111/j.1468-2230.1949.tb00125.x |
| Author | Nigel Bridge |
THE
MODERN
LAW
REVIEW
-~
Volume
12
July
1949
No.
3
PRESUMPTIONS
AND BURDESNS
LORD
JUSTICE
DENNING
has advocated and has himself adopted a
re-classification of the traditional conceptions involved under the
general heading of burden
of
proof and presumptions. The prin-
ciples and the new terminology were expounded in an article
in
The
Law
Quarterly
Review
(Vol.
61,
p..
879),
and have since been
launched with His Lordship’s blessing ln
Emmwl
v.
Emmanuei
(1945)
61
T.L.R.
588
and
Dzlnnz
v.
Dunn
119481
2
All E.R.
822.
The re-classification distinguishes
:
(1)
legal burdens;
(2)
provi-
sional presumptions and burdens
;
(8)
compelling presumptions
;
(4)
ultimate burdens; and
(5)
conclusive presumptions; and
dis-
cards altogether the old distinction between presumptions
of
law
and presumptions of fact.
Now,
of
the desirability of some re-classification there can be
no doubt. The words ‘burden
of
proof’ are habitually used
without qualification in at least three different senses.
‘
The con-
fusion
’,
his Lordship wrote,
#
has often been pointed out. The
only way to avoid
it,
whenever the words
“
burden of proof
”
are
used is to make clear which particular sense is intended.’ The
word
‘
presumption
’
is
in
no better case; many shades of meaning
have been given to it, and although there have been as many
attempts to evolve a satisfactory distinguishing terminology, in
current judicial usage
it
is impossible to say of this
or
that kind
of presumption that it has precisely this
or
that legal effect.
It
is
still true today, as it was fifty years ago, that
:
‘
A
change is simply
necessary to accurate legal speech and sound legal reasoning; and
we may justly expect those who have exact thoughts, and wish
to
express them with precision, to avail themselves of some dis-
crimination in terminology which will secure their end
’
(Thayer,
Preliminary Treatise
on
Evidence,
p.
885).
Indeed, the persistence
of ambiguity,
for
another fifty years since these words were written,
has intensified the confusion of legal thought.
If
it
appears an
almost hopeless task at this late stage to introduce the precise
language necessary to clear thought, it is the more urgent that the
task
be
attempted.
While, therefore, wholeheartedly agreeing with Lord Justice
Denning’s premises,
I
respectfully differ from his conclusions. The
purpose of this article is: first, to try
to
demonstrate that the
suggested re-classification not only fails to provide a satisfactory
terminology for distinguishing the several legal concepts involved,
but, in one respect, is calculated to perpetuate
a
judicial error
273
VOL.
12
18
274
THE
MODERN
LAW
REVIEW
VOL.
12
arising from the very confusion which the re-classification seeks to
disperse
;
secondly,
to
suggest an alternative re-classification distin-
guished by an appropriate terminology.
Let us first see what his Lordship says of the different kinds
of burden.
‘
UZtirtiate
Bzirdcrru.
Where the ultimate decision of a case
depends on the determination of a number of separate issues, the
burden on the ultimate issue needs
to
be distinguishd from the
burden on the separate issues.’ This proposition is unassailable.
What is here called the ultimate burden, has sometimes been called
the general burden of proof
or
the burden of proof on the whole
case. Once this distinction is made it does not touch the other
aspects of the subject and of this no more need be said.
‘
Legal Burdens.
When the law puts on
a
party the burden of
proving
a
certain fact in issue as
a
condition of giving him judg-
ment, that burden never shifts and must be discharged
or
he will
fail.
. .
.
This is the
legal
burden of proving the fact in issue.
The incidence of it
.
. .
depends on the rules of substantive law.’
The absolute necessity of distinguishing burden in this sense
from any sense in which the burden can properly be said to shift
within the scope of
a
single issue, has been pressed by textbook
writers. Professor Wigmore described this kind of burden,
accurately but cumbrously, as
‘
the risk of non-persuasion
’;
in
Phipson
on
Evidence
it
is
less accurately termed ‘the burden of
proof on the pleadings
’;
judicially it has sometimes been distin-
guished as the burden of
‘
establishing
’
the fact in issue. In the
sense that this burden is imposed by the substantive law the
designation
‘
legal burden
’
is unobjectionable. But the epithet
is used by Lord Justice Denning to point another distinction. The
burden
is
described as
‘
legal
’
in that the failure to discharge
it,
necessarily and as
a
matter of law, involves a certain consequence,
in contrast with the
‘
provisional burden
),
which imposes no such
specific legal obligation.
It
will be necessary to examine the
definition of
‘
provisional burdens
’
before criticising this distinc-
tion. But it is convenient at this point
to
introduce the expression
which, it
is
submitted, offers the most apt alternative to ‘legal
burden
’,
namely the
‘
fixed burden of proof
’.
This emphasises the
vital distinguishing feature of burden in this sense.
I
shall also
adopt in this article Professor Wigmore’s convenient phrase
‘
the
proponent of the issue’ to designate the party upon whom the
fixed burden of the issue rests.
Lord Justice Denning treats
of
‘
provisional presumptions and
burdens
’
under a single heading.
For
the sake of clarity, and at
the expense, perhaps, of logical arrangement,
I
wish as far
as
possible to deal separately with these two subjects.
The proponent
of
the
issue introduces his evidence and invites the court to infer the fact
in issue.
‘
The court will decline before the end of the case
to
rule
‘
Provisional burdens
’
arise in this way.
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