Harold set up a business without obtaining a licence as required by statute. He insured his business premises under a policy covering loss or damage except where caused by arson. Shortly afterwards, the premises are burnt to the ground. Harold is now suing the insurers. They deny liability to pay on the ground that they are not satisfied the fire started accidentally. Further, Harold is being prosecuted by the local authority for carrying on his business without a licence.

Explain the different burdens of proof that can be recognised and consider the application of these rules in relation to both the civil action brought by Harold and the prosecution by the local authority.

The aim of this assignment is to explain the different burdens of proof that can be recognised and consider the application of these rules in relation to both the civil action brought by Harold and the prosecution by the local authority.

When an issue of fact has to be proved in a court of law, it first necessary to consider the burdens borne by the parties and so, in order to do this one needs to establish what are the different burdens of proof that can be recognised. The general meaning of the phrase ‘burden of proof is “…the obligation to prove.

However the burden of proof can then be divided into two different principles known as the legal burden and the evidential burden. The legal burden of proof has also been referred to as ‘the burden of proof’, ‘probative burden’ or the ‘ultimate burden’. Another name given is ‘the burden of proof on the pleadings’ to show that this burden is sometimes indicated by the pleadings. The legal burden is defined as; “…the obligation of a party to meet the requirement that a fact in issue be proved or (disproved)….

The evidential burden is also referred to as ‘the burden of adducing evidence’ and ‘the duty of passing the judge’. The prosecution must produce sufficient evidence to present before the tribunal of fact. This is to prevent the case being thrown out of the court and to satisfy the legal burden. The evidential burden may be defines as; “…the obligation on a party to adduce sufficient evidence of a fact to justify a finding on that fact in favour of the party so obliged.

In between the two burdens lies the provisional burden which is the obligation of a party to respond where the opponent has discharged the evidential burden.

Legislation has been transferring the burden of proof from one party to another and this has been done by way of creating offences where it is not clear whether the defence is part of the element of the offence. The statute will be imposing a reverse burden of proof. This reverse burden may now be incompatible with Article 6(2) of the European Convention on Human Rights as incorporated by the Human Rights Act. Article 6(2) states:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.

However some statutes may shift the burden of proof by insinuation. For example The Magistrate Courts Act (1980) states that:

“Where the defendant…relies for his defence on any exception, proviso, excuse, qualification…the burden of (proof)…shall be on him…”

The activities of Parliament continue to be noted in such legislation. The authority of parliament is seen interfering with the presumption of innocence.

The application of these rules in a civil action by Harold;

The general rule in civil cases; is that he who asserts must prove. When applied to Harold’s case, since he is suing the insurance company for a breach of contract, then he must prove the existence of a contract as well as prove that the fire was an accident because the insurance fails to cover him for arson. In Wakelin v. London and South Western Rly Co a widow brought action under the Fatal Accidents Act (1846). The only available evidence was that her husband’s dead body had been found near a level crossing at the side of a railway line. Lord Halsbury LC held that the widow bore the evidence of proving that her husband’s death had been caused by the defendant’s negligence; if she failed to discharge that burden; then she failed. Certain issues are essential to a party to civil proceedings in the sense that they must be proved by him if he is to succeed in the action. The legal burden of proving a contract, its breach and consequential loss lies on the claimant, i.e. Harold in this case.  The legal burden of proving a defence which goes beyond a simple denial of the claimant’s assertions lies on the defendant. However, in Nimmo v. Alexander Cowan & Sons the case was brought by an injured party under Section 29(1) of the Factories Act 1961, which provides that:

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“…every place at which any person has at any time to work…shall, so far as reasonably practicable be made and kept safe for any person working therein”.

The House of Lords held that that there was no burden on the plaintiff to prove that it was reasonably practicable to keep the premises safe; the defendant employers bore the burden of proving it was not reasonably practicable to keep the premises safe. Given the defendant was in a better position to discharge the legal burden than the plaintiff.

In BHP Billiton Petroleum Ltd v. Dalamine Spa it was held that ...

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