Civil fraud claims: Misjudging the scales?

Thomas Johnson examines the court’s orthodox approach to the burden of proof in civil claims in an article for the New Law Journal.

IN BRIEF: In civil fraud claims, where deceit dances upon a thin line, the standard of proof remains the balance of probabilities, untethered to the graver stakes that criminal cases require.

Those practising in the civil courts will know that unlike the stern edicts of criminal law, demanding evidence beyond a reasonable doubt (think Rumpole of the Bailey making forceful submissions to a jury), civil claims rest upon ethereal persuasion to a lone judge on the balance of probabilities. Truth of a case is ascertained not by the ironclad fist of certainty but by a fine balance of what is more likely to have occurred. Yet too often a lamentable error persists when the balance of probabilities is contemplated in claims arising from alleged dishonesty (deceit, conspiracy, dishonest assistance, etc). Frequently lawyers, those sworn interpreters of the law’s labyrinthine language, stumble into a basic misunderstanding of the balance of probabilities when contemplating fraud claims, either inflating the civil standard beyond its true measure, or worse, mistaking it for the more formidable criminal threshold.

Phrases such as ‘deceit requires a higher standard of proof’ or ‘the burden of proof in civil fraud is akin to the criminal standard’ (we have all heard them) are wrong because they incorrectly transform the burden of proof into a clumsy aphorism. Or as Lord Hoffmann put it in Secretary of State for the Home Dept v Rehman [2003] 1 AC 153, [2002] 1 All ER 122 at [55]: ‘I feel bound to say that I think that a “high civil balance of probabilities” is an unfortunate mixed metaphor.’…

Read the full article on the NLJ website (subscription may be required).