Litigation: What is the standard of proof and where is the burden of proof in civil litigation cases?
Standard of proof
The standard of proof for civil intervention cases is the balance of probabilities (‘more probably occurred than not’).
In the lead case on civil standard of proof Lord Hoffmann stated in the House of Lords judgement in the case of In Re B (Children) ( UKHL 35):
- … I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not.
This is different to the standard of proof for criminal cases, which is ‘beyond all reasonable doubt’.
Burden of proof
Cases where we use the Kittel and Fini principles
The burden of proof lies with HMRC to show that, on balance of probabilities, the taxable person ‘knew or should have known’ that he was involved in VAT fraud or that his transactions were ‘connected with fraudulent evasion of VAT’. Moses LJ, in the Court of Appeal judgement in the case of Mobilx Ltd (in administration) and others ( EWCA Civ 517), stated:
- HMRC raised in writing the question as to where the burden of proof lies. It is plain that if HMRC wishes to assert that a trader’s state of knowledge was such that his purchase is outwith the scope of the right to deduct it must prove that assertion. No sensible argument was advanced to the contrary.
Cases where we use another civil intervention
The burden of proof lies with the taxable person.