Standards of Proof in Civil Litigation

Published date01 March 1999
Date01 March 1999
Standards of Proof in Civil Litigation
Mike Redmayne*
It is well known that the standard of proof in a civil case is proof on the balance of
probabilities, and that this means that the party bearing the burden of proof must
prove that her case is more probable than not. Indeed, the civil standard of proof
appears to be one of the simplest concepts in the law of evidence, requiring little
explanation or illustration. But scratch the surface of this most basic of evidentiary
notions and an altogether more complex picture is revealed: the case law provides
a range of conflicting interpretations of what the civil standard of proof requires in
different contexts. When an area of the law is this confused, one starts to suspect
that the problem lies in more than a failure by the appellate courts to resolve
conflicting authorities and to lay down clear guidance (though this has certainly
added to the difficulties in this area); one is drawn instead to the conclusion that the
confusion lies at a deeper, conceptual level and that it is driven by the lack of a
clear understanding of the basic building blocks of forensic proof.
In the first section of this article, I describe a simple set of conceptual tools for
analysing the civil standard of proof. With this foundation in place, I then survey
and evaluate the various approaches to the civil standard of proof that have been
developed in the case law. The final section of the article is more ambitious: I
discuss three situations in which judges have held that variations on the basic civil
standard of proof are required and assess whether or not some variation is justified.
The analysis in this final section may prove controversial, but whether or not
readers agree with it, I hope that the preceding sections will, at least, have provided
some common ground on which debates about these matters can take place.
Probability and utility: two components of forensic proof
In a typical civil case, two parties dispute whether one of them has broken some
rule.1If the court decides that one of them has broken the rule, damages will be
awarded to the other party. The court will receive and evaluate evidence because,
in order to determine whether the rule has been broken, it must decide what
happened. The court can never be completely certain about what happened in the
past, therefore this factual determination need only be made to a degree of
probability. The concept of probability is the first important component of proof. It
ßThe Modern Law Review Limited 1999 (MLR 62:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 167
* Department of Law, Brunel University.
I am grateful to Andrew Choo, Neil Duxbury, Richard Friedman and Felicity Kaganas for comments on an
earlier draft.
1 In fact in many civil cases one party admits fault and the dispute revolves around the amount of
damages to be awarded. Sometimes the disagreement about quantum hinges on evidence: the court
must determine facts (for example, how grave an injury is) in order to resolve it. If so, the civil
standard of proof will still be needed in order to resolve this dispute. At other times the disagreement
is legal rather than factual: the facts are agreed, but the disagreement is about the quantum merited by
the factual situation; or about whether a factual situation can properly be categorised as, say,
contributory negligence. In such situations analysis in terms of a standard of proof is less useful,
because what is required is an evaluative judgment.
happens, though, that there are a number of different conceptions of probability
and that there is disagreement about precisely what probability means in the legal
context.2This is not, however, a serious stumbling block for present purposes:
whether forensic probability is cardinal or ordinal, objective or subjective,
Pascalian or Baconian there is little doubt that it comes in degrees. This is certainly
the accepted understanding of the difference between the criminal and civil
standard of proof: in order to win a criminal case, the prosecution must prove its
case to a higher degree of probability than need the plaintiff in a civil case. Though
nothing much will turn on this, it will be simplest to interpret the concept of
probability in law as requiring the fact-finder to have a certain degree of belief in a
case before she accepts that it has been proved. Degrees of belief vary along a scale
between 0 and 1; a person who has a degree of belief of 0.1 in a proposition
believes that that proposition is unlikely to be true, whereas if her degree of belief
is 0.99 she regards it as almost certainly being true.
The civil standard of proof has been described in a number of different ways.
One of the clearest explanations has been offered by Lord Denning: ‘[i]f the
evidence is such that the tribunal can say ‘‘we think it more probable than not’’,
then the burden is discharged, but if the probabilities are equal it is not’.3Other
formulations use expressions such as ‘preponderance of probability’, ‘preponder-
ance of the evidence’ and ‘balance of probabilities’. The second of these is the
favoured term in the United States, while the third is the usual English formulation.
All seem to imply the same thing: that the plaintiff’s case need not be very
probable, but that it needs to be more probable than its negation. This suggests that
the best interpretation is that a degree of belief of just over 0.5 is required.4The
only phrase which might be interpreted differently is the expression ‘preponder-
ance of the evidence’, which might be thought to imply that the plaintiff needs to
produce more evidence than the defendant, but this interpretation does not appear
to have any current support. Indeed, it would be odd if it did, because it would
imply that there was some way of quantifying evidence, as opposed to the effect
that evidence has on belief.
2 See Colin Howson, ‘Theories of Probability’ (1995) 46 British Journal for the Philosophy of Science
1; Philip Dawid, ‘Appendix: Probability and Proof’ in Terence Anderson and William Twining,
Analysis of Evidence (London: Weidenfeld and Nicolson, 1991) 404–416; William Twining,
‘Debating Probabilities’ (1980) 2 Liverpool L Rev 51.
3Miller vMinister of Pensions [1947] 3 All ER 372, 373–374. Although Lord Denning states that it is
‘well settled’ that this is a correct description of the civil standard of proof, this passage has become
the standard citation for the assertion that the civil standard of proof is proof on the balance of
probabilities; before this, the law does not seem to have been clear and it is difficult to say when the
balance of probabilities became the dominant concept. Although we find the concept of founding a
verdict ‘upon that which is most probable’ as early as 1571 (Newis vLark Plowd 403, 412), we should
be wary of reading too much into statements like this one, made at a time when ‘probability’ may
have had a rather different meaning than it does today. Newis certainly did not settle the civil
standard: in 1858 we find the House of Lords, while declaring that ‘in civil cases the preponderance of
probability may constitute sufficient ground for a verdict’, also noting that ‘a difference of opinion
exists on this question’ (Cooper vSlade (1858) 6 HL Cas 746, 772). My suspicion is that, because the
civil standard of proof may require a more sophisticated notion of probability than does the criminal
standard, the modern concept only became established at a fairly late date. Although Barbara J.
Shapiro’s Beyond Reasonable Doubt and Probable Cause: Historical Perspectives on the Anglo-
American Law of Evidence (Berkeley: University of California Press, 1991) concentrates on the
development of the criminal standard, some of the sources she cites suggest that the courts did not
differentiate between proof in civil and criminal cases until well into the 19th century (see eg, ibid,
27, 38). Indeed, in this century we find judges professing not to understand how there can be more
than one standard of proof (eg Lord Goddard in RvHepworth and Fearnley [1955] 2 QB 600, 603).
4 It might be argued that ‘preponderance of probability’ leaves open the possibility that the plaintiff’s
case must be substantially more probable than its negation. But if this is so, the phrase is too vague to
serve as a description of a standard of proof.
The Modern Law Review [Vol. 62
168 ßThe Modern Law Review Limited 1999

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