Civil Proceedings: Burden and Standard of Proof  

Civil Proceedings: Burden and Standard of Proof

ISBN 978-983-3519-31-6
Author: Nasser Hamid
Binding: Softcover
Publication Price: MYR 220
The law is stated as of January 31 2012

In civil proceedings, the burden of proof rests solely on the plaintiff to prove his case on a standard of balance of probabilities throughout the trial whereas the onus of proof or evidential burden is not stable and constantly shifts during the trial from one side to the other according to the scale of evidence and other preponderates. Such shifting is one continuous process in the evaluation of evidence. According to Sections 102 and 103 of the Evidence Act 1950, if the party with whom the onus lies, whether initially or subsequently, as a result of its shifting does not give any or further evidence or gives evidence which is not sufficient, such party must fail: Salleh Abas FCJ in International Times & Ors v Leong Ho Yuen [1980] 2 MLJ 86 (FC).

The law is trite that he who asserts the existence of facts must prove that those facts exist. Section 101 of the Evidence Act 1950 (Act 56) provides that the burden of proof rests upon the party who desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts.

The legal burden is usually determined by the rules of substantive law as set out in the relevant precedents and statutes. It is settled law that the burden of proof rests throughout the trial on the party on whom the burden lies. Where a party on whom the burden of proof lies has discharged it, then the evidential burden shifts to the other party.

The rules of evidence govern the proof of facts in a criminal trial and in civil proceedings. The success or otherwise of a claim or cause of action is largely dependent on satisfying the burden and standard of proof. The evidence must be sufficient, qualitatively, to clear the hurdle of the applicable standard of proof. The burden and standard of proof in civil proceedings can either be beyond reasonable doubt or on a balance of probabilities.

Civil Proceedings: Burden and Standard of Proof examines the applicable standards of proof under various topics. The largest sections of the book cover CONTEMPT, DEFAMATION, EMPLOYMENT, FAMILY LAW and FRAUD.

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