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together… in partnershiptogether… in partnership
Burden of Proof – Civil Cases
Presented By Mariette Peters
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Parties? Plaintiff v Defendant
General Rule
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General Rule
What is the burden and standard of proof on the plaintiff in civil cases?
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General Rule
What is the burden and standard of proof on the defendant in civil cases?
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General Rule
What is the meaning of ‘balance of probabilities’?
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‘not as high as required in a criminal case.. more probable
than not… but if the probabilities are equal, it is not
discharged’
Miller v Minister of Pensions - Lord Denning
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Section 103
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
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Section 103
Negligence
What must the plaintiff prove? Duty Breach Causation
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Section 103
What must the defendant prove?
No Duty No Breach No Causation
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Section 103
Any particular facts?Contributory negligenceVolenti non fit injuria
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Section 103
What will be the burden and standard on the defendant when he raises new issue?
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Section 103
Breach of Contract
What must the plaintiff prove?ContractBreachRemedies
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Section 103
What must the defendant prove?
No contract No breach
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Section 103
What else can defendant raise?Misrepresentation?Non est factum
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Section 103
What will be the burden and standard of proof on the defendant?
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Section 103
If any party raise a particular fact, he has the legal burden to prove that particular fact on a balance of probability
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Section 103
• What if that particular fact has a criminal element to it? • Using premises for immoral purpose• Adultery• Cruelty• Desertion• Forgery• Fraud
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Section 103
Eastern Enterprise v Ong Choo Kim
Blyth v Blyth
Adorna Properties v Boonsom Boonyanit
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Section 103
Standard of proving a criminal allegation in a civil case is still balance of probabilities though the degree required may be higher
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Section 103
What about fraud?
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Fraud
1997Pre-1997 Post-1997
Fraud
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Pre-1997
Cases were inconsistent Balance of probabilities
Lee You Sin v Chong Ngo Khoon
Beyond a reasonable doubtSaminathan v PappaChu Choon Moi v Ngan Siew TinDatuk Jaginder Singh v Tara
Rajaratnam
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1997
Ang Hiok Seng v Yim Yut KiuCivil Fraud v Criminal FraudBalance of probabilities v Beyond
Reasonable Doubt
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Ang Hiok Seng v Yim Yut Kiu
Where the fraud in civil proceedings is based on a criminal offence, then the criminal burden of proof beyond a reasonable doubt is applicable – but where the fraud alleged is purely civil in nature, there is no reason why the civil burden should not apply
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Ang Hiok Seng v Yim Yut Kiu
Ong Ban Chai v Seah Siang Mong
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Post 1997
What is the difference between civil fraud and criminal fraud?
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Post 1997
Eric Chan Thiam Soon v Sarawak Securities Sdn Bhd – H Ct
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Post 1997
Yong Tim v Hoo Kok Cheong
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Post 1997
Lee Way Fay v Lee Seng Ein
Chong Song v Uma Devi Kandiah – 2011, CA
As noted in the very quotation from the Adorna Properties's case, as quoted by the learned trial judge, such standard of proof is in respect of forgery. It is a different kettle of fish from fraud. Despite identifying the core issue of the case, the learned trial judge unfortunately started off on a wrong footing.
It is trite law, that has been held and upheld by the apex courts in this country that the standard of proof for fraud, in civil cases, is beyond reasonable doubt.
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Other criminal allegations
Assault and battery
Borhan Haji Daud v Abd Malek Hussin [2010] CA
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Section 106
Burden of proving fact especially within knowledge.When any fact is especially within
the knowledge of any person, the burden of proving that fact is upon him.
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Section 106
Res Ipsa Loquitur What are the basic facts to establish before the doctrine of res ipsa loquitur may be invoked?
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Section 106
If the doctrine of res ipsa loquitur is successfully pleaded, how does it affect the burden and standard of proof on the respective parties?
MA Clyde v Wong Ah Mei
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Section 106
What’s the connection between section 106 and Res Ipsa Loquitur?
David Chelliah v Monorail Malaysia Technology Sdn Bhd & Ors
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