BURDEN OF PROOF AND STANDARD OF PROOF IN CIVIL LITIGATION

• Citation: (2013) 25 SAcLJ 130
• Date: 01 December 2013
• Published date: 01 December 2013

This article considers the problems of burden of proof and standard of proof in civil litigation. There is no standard text on evidence law that considers these issues from the civil practitioners' point of view. Understanding clearly on whom the burden of proof lies is a fundamental requirement for any litigator. This entails understanding the trial process, the mechanics of evidence adduction, the factors at play when presumptions are applicable and the basics of the burden on a party. This is an attempt to relate matters of practice with matters of procedure and law to give the reader a fuller understanding of the tools available to better prepare his case. Matters of practical pleading are interwoven with the issues of burden of proof. These are in turn considered against how a trial is run in Singapore, bearing in mind the Evidence Act and case law. The second part of the article looks at the critical issue of standard of proof, with the focus on cases involving civil fraud. These kinds of cases have lately been receiving increasing attention, and this article would be timely to state the law on the standard of proof applicable to such civil fraud cases. The current position in England, which may be different from the current position in Singapore, is fully considered.

I. Introduction

1 This article considers the issues of burden of proof and standard of proof in civil litigation from the viewpoint of practitioners. In litigation, knowledge of the law (whether substantive or procedural) has only one end, that is, to succeed in the case that the litigant is pursuing. Burden of proof and standard of proof form the bedrock of civil litigation.

2 A clear understanding of these issues is thus a fundamental prerequisite for practitioners. It was very aptly observed by the Honourable V K Rajah JA in the case of Tat Seng Machine Movers Pte Ltd v Orix Leasing Singapore Ltd:1

[T]he issue of on precisely whom the burden of proof lies on the issue of good faith is a moot point. Nevertheless, as this is an important point of practical significance, we think it would be useful to the legal community for us to express our views on this point …

In our view, this approach ought to be further clarified. The judge may have overstated the evidential requirements imposed on the defendant.^[2]

[emphases added]

3 In respect of confusion relating to the standard of proof, the words of Lord Hoffmann in the case of In re B (Children)3 (“In re B”) are particularly relevant. He said:4

Thirdly, there are cases in which judges are simply confused about whether they are talking about the standard of proof or about the role of inherent probabilities in deciding whether the burden of proving a fact to a given standard has been discharged.

II. Interpretation of terms

4 Unless the context otherwise requires, the terms below shall have the following meanings:

(a) the “Act”: the Evidence Act;5

(b) “burden simpliciter”: the burden on a party (either plaintiff or defendant) to prove a particular fact to the civil standard (s 105 of the Act);

(c) “burden to prove its case”: the burden on the plaintiff or the defendant to prove its pleaded case to the civil standard (see ss 103 and 104 of the Act);

(d) “civil standard”: proof on a balance of probabilities;

(e) “criminal standard”:

(f) “hybrid case”: proof beyond reasonable doubt; a civil case where there is a material part or allegation involving fraud, forgery, claim for fraudulent trading (s 340 of the Companies Act)6 or other similar criminal implications;

(g) “legal burden of proof”: the burden to prove its case and/or the burden simpliciter; and

(h) “standard of proof”: the civil standard or the criminal standard.

III. Legal burden of proof7

5 All cases are decided on the legal burden of proof being discharged (or not). Lord Brandon in Rhesa Shipping Co SA v Edmunds had remarked:8

No judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course to take.^[9]

6 Whether one likes it or not, the legal burden of proof is consciously or unconsciously the acid test applied when coming to a decision in any particular case. This fact was succinctly put forth by Rajah JA in Britestone Pte Ltd v Smith & Associates Far East, Ltd (“Britestone”):10

The court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him. Since the terms ‘proved’, ‘disproved’ and ‘not proved’ are statutory definitions contained in the Evidence Act (Cap 97, 1997 Rev Ed) (‘EA’), the term ‘proof’, wherever it appears in the EA and unless the context otherwise suggests, means the burden to satisfy the court of the existence or non-existence of some fact, that is, the legal burden of proof: see ss 103 and 105 of the EA. [emphasis added]

7 With the above observations in mind, it is proposed to analyse the issues that may come up in practice in relation to burden of proof and standard of proof under the Act in civil litigation. Generally, the case law that will be referred to will relate to civil cases. Criminal cases will only be referred to when they touch upon issues under the Act relevant to civil litigation.

IV. Sections 103 to 105 of the Evidence Act

8 The starting point is the occurrence of the burden of proof. On this matter, ss 103 to 105 of the Act provide:

Burden of proof

103—(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

On whom burden of proof lies

104 The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

Burden of proof as to particular fact

105 The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

[emphases added]

9 The Court of Appeal in Cooperatieve Centrale Raiffeisen—Boerenleen bank BA, Singapore Branch v Motorola Electronics Pte Ltd11 (“Rabobank”) had clearly held that pursuant to ss 103 and 105 of the Act, the legal burden of proof is placed on the party who asserts the

existence of any fact in issue or relevant fact.12 Also, in the same case, the distinction between legal burden of proof and evidential burden of proof was explained:13

It is now trite law that there is a distinction between the legal and evidential burden of proof. This court has explained the distinction between the two concepts in Britestone…

Sections 103 and 105 of the Evidence Act, which place the burden of proving a fact on the party who asserts the existence of any fact in issue or relevant fact respectively, concern the legal rather than the evidential burden of proof. The evidential burden, whilst not expressly provided for in the Evidence Act, exists in the form of a tactical onus to contradict, weaken or explain away the evidence that has been led: Britestone at [59]. It is the latter form of burden which may shift from one party to the other.

10 It is submitted that the use of the term “legal burden of proof " in Britestone, refers to the term “legal burden of proof " as defined above.14 It comprises the “burden to prove its case” and the burden simpliciter.15 This legal burden of proof never shifts.16 Bearing this in mind, it is proposed to consider the various terms and implications considered in Britestone,17 including presumptions, burden of proof, evidential burden and whether there is any burden “shifts”.

V. The legal burden of proof on a typical plaintiff and a typical defendant

11 In order to understand the implications of ss 103 to 105 of the Act more fully, the typical plaintiff 's case and defendant's case in practice must be considered. The plaintiff always has to discharge the legal burden of proof in order to succeed in its case.18

12 The position of the defendant needs clarification. In order to ascertain what legal burden of proof is imposed on the defendant, the kinds of defence must be considered. There are three usual forms of defence. First is the defence of a mere denial of a claim (“first form of defence”). Here, there is strictly speaking no legal burden of proof. The defence is not putting forth a legal defence to avoid or defeat the claim;19 neither is it asserting a positive case. What the first form of defence seeks to do is to ensure that the plaintiff fails to prove its case.

13 The second form of defence is a defence where the defendant asserts a fact either to explain away any of the factual assertions of the plaintiff or to give a different version of the facts that is favourable to the defendant (“second form of defence”). In such an event, the burden to prove its case or discharge the burden simpliciter20 would be on the defendant. However, it may not be fatal to the defendant if it fails to discharge this burden. If the defendant succeeds in convincing the court on a 50–50 basis its version of any material fact or events vis-à-vis the plaintiff 's version, then the plaintiff would still fail in its case if the plaintiff has not discharged its legal burden of proof.21 In such a case, though the defendant does not succeed in proving its case by discharging its legal burden of proof, the defendant has, however, in that process succeeded in bringing down the plaintiff 's case to a 50% level, thus ensuring that the plaintiff 's case is “not proved”.22

14 It can be seen that the first form of defence has as its sole objective, and the second form of defence has as part of its objective, to...