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What Does “Balance of Probabilities” Mean?  

When courts decide whether a matter has been proven, they do so according to a benchmark which the party initiating the proceeding must reach. This is commonly referred to the standard of proof. All forums, including courts and tribunals, must apply the appropriate standard of proof when deciding if a matter has been proven. The overarching goal is the court being satisfied to the requisite degree of the matter being alleged. In civil matters, the decision maker must be satisfied that the matter has been proven on the balance of probabilities, while criminal matters require a higher standard of proof. 

Legislative framework

The civil standard of proof is codified in Section 140 of the Evidence Act. The Act also provides a framework for the court to use in deciding whether the standard of proof has been satisfied on the balance of probabilities, namely:

  1. The nature of the cause of action or defence; and
  2. The nature of the subject matter of the proceedings; and
  3. The gravity of the matters alleged.

How to satisfy the court

Despite Section 140 of the Act, there is still a substantial amount of room for discretion in terms of how much weight a court will give to each consideration. As the Act stipulates, how the standard of proof of balance of probabilities is applied is highly contingent on the subject matter before the court. This essentially allows for a sliding scale to be implemented which works off the nature of the proceedings. The more serious the factual matter is, the higher the standard of proof that is required.

Case law on determining balance of probabilities

In addition to the legislation, case law is used to provide further clarification as to how one goes about satisfying the threshold of balance of probabilities. In the 2012 case of NOM v DPP, the Court of Appeal noted that:

“The standard of proof must be responsive to the gravity of the facts in issue and the consequences of the ultimate decision”

In the 1930 case of Briginshaw v Briginshaw, two very important considerations were established in order to assist the court and individuals in determining what surpasses or ultimately fails to reach this standard of proof, namely that a court or tribunal must be satisfied of the matters before it on the balance of probabilities:

  1. to a comfortable degree
  2. based on very clear and cogent evidence

It is this notion that guides the courts on how best to apply this threshold, however it should be noted that on numerous occasions courts have warned against a strict mathematical approach.

Holistic approach

What has to be proven on the balance of probabilities should not be viewed as simply a 1 vs 1 approach to the arguments put to the court. It should be a holistic approach. A court should not just simply weigh up the case of party A against the alternative case put forward by party B and come to a determination based on which case is more plausible.

It is imperative that sufficient evidence is provided to affirm the arguments made out to the court. The court must be satisfied that on the balance of probabilities, one case is more plausible than the other and that there is a foundation for the case which is backed up by the evidence before the court. Where there is a sufficient argument and sufficient foundation evidence, there is a greater likelihood that the threshold will be met.

In conclusion, the civil standard of proof of balance of probabilities can be interpreted in many ways by different courts and tribunals. In its simplest form, should the decision-maker deem that a version of events is 51% more likely to have occurred than the alternative version, then it meets the standard of proof of balance of probabilities. While balance of probabilities is a notion that is at face-value simple to understand, it can be complicated to establish whether the threshold has been met.

If you require legal advice or representation in a civil law matter or in any other legal matter, please contact Go To Court Lawyers.

By Joseph Palamara, Associate

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