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Judging on the balance of probabilities – it’s murder!

Gateley Legal

Where any facts are to be proved in civil, as opposed to criminal litigation in England and Wales, the standard or burden of proof for those facts is the preponderance of probability, more usually referred to as the balance of probability.  This means that for the court to be satisfied that an event occurred (such as whether one person did or said something to another), it must determine based on the evidence that the occurrence of the event was more likely than not.  In other words, the question is whether the likelihood that something happened is greater than evens.

In the case of serious allegations, such as allegations of fraud, one might be forgiven for thinking that the burden of proof becomes greater because of the seriousness of the charge and the potential repercussions.  However, where a very serious allegation is made, the burden of proof is technically no higher.  The Court still has to be satisfied only that it is more likely than not that the event in question occurred.  However, the courts have recognised that the more serious an allegation, the less likely it is that the event in question happened.  For example, simple breaches of contract are more commonplace (and therefore more likely to occur) than cases of serial sexual abuse or massive investment fraud.  The probability or improbability of an event is to be taken into account when deciding whether, on the balance of probabilities, it did in fact occur.  So the more serious the allegation, the stronger the evidence required in order to overcome the unlikelihood of what is alleged, and therefore to prove that something happened on the balance of probabilities.

A striking example of the application of the legal principle is contained in a very recent High Court case involving allegations by the claimant – in his claim to recover damages for personal injury – that the defendant had organised and arranged his attempted murder [1]. At the time of the incident, the claimant was acting on behalf of a British mining company lobbying for the reinstatement of a mining licence over the second largest gold deposit in the Kyrgyz Republic.  The Defendant was the son of the President of the Kyrgyz Republic, and the claimant alleged that his attempted murder was arranged in order to prevent him from jeopardising a fraudulent scheme to obtain the mining licence for another company whose beneficial owners were being rewarded for helping to bring the President to power.

It is apparent from the Judgment that the evidence relied upon simply wasn’t strong enough to overcome the burden of proof in a case of this nature, and the claimant’s case failed.  The only specific evidence of the defendant’s involvement in the shooting of the claimant came from a witness whose evidence was found to be wholly implausible on its face.  Difficulties with the standard of proof were amongst a number of reasons for the claimant’s failure, but the seriousness of the allegations and their effect on the standard of proof was prominent in the Judge’s discussion of the relevant legal principles.

Whilst non-criminal cases dealing with allegations of attempted murder are rare, the same principles apply equally to all non-criminal cases, including commercial cases for breach of contract, shareholder disputes, or allegations of fraud against a director.  In all of those cases, the task of meeting the required standard of proof is often less straightforward than it may first appear.

[1]Sean Daley v Maksim Bakiyev [2016] EWHC 1972 (QB)

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