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Balance of Probabilities: What does it mean?

by Dr Carlos Bugeja – Senior Associate

The Maltese Law of Evidence employs a probatory system of persuasion. Allegations need not be proved to an absolute certainty; the initiator has to merely reach the level of persuasion assigned by law in the forum they are proposed. Our system provides for two such standards; proof on balance of probabilities in civil proceedings and proof beyond reasonable doubt in criminal proceedings.

In the civil forum, for the court to be satisfied that the facts being alleged have been sufficiently proven, generally, proof on balance of probabilities is sufficient.

This means that the party alleging the claim has to convince the court that the probability that the facts being asserted have happened surpasses the possibility it hadn’t. Therefore, ‘balance on probabilities’ denotes that the contested facts are proved to be more probable than not. If the possibility of facts being true is equal to it being false, the burden is held not to have been discharged. Thus the case fails actore non probante reus absolvitur.

Therefore, in mathematical terms, a possibility of 50% +1 is sufficient. A higher standard is not necessary.

It has been expressed on various occasions that during civil proceedings, the courts have to stand ready to deal with conflicting allegations regarding facts. In Frank Giordemaina Medici et vs William Rizzo et the Court held that when, in the civil forum, such two conflicting versions of a factual nature are alleged, the Court has to employ an exercise in order to see whether the allegation proposed by the initiator is, on a more likely then not basis, probable, and thus, if it absolves the burden of proof. The court further held that:

Il-grad ta’ prova rikjest fil-kamp ċivili, b‟differenza minn kawżi kriminali fejn il-liġi tesiġi li l-prova tal-ħtija għandha tirriżulta mingħajr dubju raġjonevoli, fil-kamp ċivili huwa biżżejjed li jkun hemm ċertezza morali f‟moħħ il-ġudikant. Din ċ-ċertezza morali rikjesta f‟kawzi ċivili hija l-effett tal-bilanċ tal-probabilitajiet. Mera possibilità mhux suffiċjenti biex tirradika r-responsabilità ċivili.

This was confirmed in George Bugeja vs Joseph Meilak; the Court identified that its role is to examine “jekk xi waħda miż-żewġ versjonijiet, fid-dawl tas-soliti kriterji tal-kredibilità u speċjalment dawk tal-konsistenza u verosimiljanza, għandhiex teskludi lill-oħra, anke fuq il-bilanċ tal-probabilitajiet, u tal-preponderanza tal-provi…” as this is enough for the purposes of a civil outcome.

This standard is perhaps best explained by Lord Denning in the notable and often quoted cases of Miller v Minister of Pensions:

If at the end of the case the evidence turns the scale definitely one way or the other, the tribunal must decide accordingly, but if the evidence is so evenly balanced that the tribunal is unable to come to a determinate conclusion one way or the other, then the man must be given the benefit of the doubt. This means that the case must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge a burden in a civil case. That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: “We think it more probable than not,” the burden is discharged but, if the probabilities are equal, it is not.

Presumably, the standard of proof on balance of probabilities in the civil forum seeks to balance the right of the parties and other values, such as minimising proceeding cost and length while ensuring enforcement efficiency. Ideally, civil cases would have to be proved to absolute certainty, but the impossibility of that happening calls for a more utilitarian approach. And indeed, it is a standard that has worked and continues to work today.

Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Carlos Bugeja on carlos@abalegal.eu.