This is an excerpt of ‘The Standard of Proof for Criminal Conduct in Civil Proceedings’ (Carlos Bugeja, LL.D., University of Malta)

In the civil forum, for the court to be satisfied that the facts being alleged have been sufficiently proved, 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.

This view is generally supported by Maltese courts, whereby it is held that, ‘il-bilanċ tal-probabilitajiet, sostrat bażiku t’azzjoni ċivili, in kwantu huma dawn, flimkien mal-proponderanza tal-provi, ġeneralment bastanti għall-konvinċiment.‘ A higher standard is unnecessary.

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.

The Court thus embarks on an exercise in order to see whether one allegation can exclude the other on the basis of an odds analysis exercise. This was confirmed in George Bugeja vs Joseph Meilak, when 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. The Court continued that:

‘Fil-kamp ċivili għal dak li hu apprezzament tal-provi, il-kriterju ma huwiex dak jekk il-ġudikant assolutament jemminx l-ispjegazzjonijet forniti lilu, imma jekk dawn l-istess spjegazzjonijiet humiex, fiċ-ċirkostanzi żvarjati tal-ħajja, verosimili. Dan fuq il-bilanċ tal-probabilitajiet, sostrat bażiku ta’ azzjoni ċivili, in kwantu huma dawn, flimkien mal-proponderanza tal-provi, ġeneralment bastanti għall-konvinċiment.’

At this point, it is interesting to note the explanation of this standard given by Lord Denning in Miller v Minister of Pensions (UK), who opined:

‘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.’

The line of reasoning proposed in Miller was also adopted in the Maltese case Enrico Camilleri vs Martin Borg. It was held that when two versions may be deemed plausible and true, and there arises no determinate circumstance which favours one over the other, ‘ma jibqax leċitu għall-ġudikant li jifforma opinjoni motivata fuq preponderanza ta’ probabilitajiet. Jeħtieġlu jasal biss għall-konklużjoni li l-attur ma jkunx sodisfaċentement u konkludentement ipprova t-talbiet tiegħu’.

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. McCormick refers to a number of American courts (which incidentally, use a similar term, ‘by preponderance of evidence’) who declared themselves shocked at the suggestion that a decision could be based solely on an estimate of probabilities, and advocated the employment of ‘actual belief’ and ‘conviction’ in the civil forum. He interprets these courts to suggest the need of proving cases to a level of ‘high probability’ rather than actual conviction. However, probability always suggests a level of more likely than not, including even the slightest of margins above equal possibility, and it is incomprehensible how one can deduce a larger probability than simple probability.

It is certainly true that there is little uncontested understanding of just what it means to prove a case to a certain standard. Whether the common-law approach (adopted by Maltese courts) in its entirety or the continental approach in its disparities (mostly relying on the discretion of the judge) better serve the judicial process is a debate being continuously proposed, and is mostly characterized by homeward favouritisms. The standard of ‘balance of probabilities’ adopted by our courts has, throughout the years, proven to have served its purposes effectively and in the lack of foolproof alternatives, departure from the established model is discouraged.