Legal burden of proof meaning

For further information relating to each of these stages, see the following Practice Notes: Case oversight in the magistrates’ courts The course of a criminal matter Phases of a summary hearing Burden and level of proof in criminal cases Ability and compellability of witnesses in criminal cases Witness testimony during a criminal trial Special arrangements Expert testimony in criminal proceedings Admitting a defendant’s bad character in criminal proceedings Admissibility of hearsay evidence in criminal proceedings Penalties imposed after conviction Obligation to give reasons and set out the effect of sentence imposed...

This checklist outlines the key obligations an insurer undertakes within an insurance policy. The duty to defend captures an insurer’s responsibility to furnish an insured with a defence to claims made under a policy. The duty to indemnify reflects an insurer’s responsibility to pay a claim for loss or damage asserted against an insured. For added insight into these concepts, see Practice Note: US—duty to defend and duty to indemnify. These duties arise under policy wording. The starting point Counsel advising clients, whether the policyholder or the insurer, should begin by obtaining the insurance contract. Insurers draft bespoke contracts, called insurance policies, that provide certain cover to insureds and set certain duties for insurers when a covered loss occurs. Covered loss is defined in each form of policy and will vary depending on the type of policy sold to an insured. The two principal duties an insurer typically owes an insured are the duty to defend and the duty to indemnify. Finding the two duties The...

Practice Note: Contract interpretation—distinguishing between liquidated damages and penalty clauses As highlighted in this Practice Note, working out whether a liquidated damages provision will be struck down as a penalty is seldom straightforward and often demands careful judgment. Although each dispute turns on the court’s construction of the contract, there are several points to weigh when examining the ambit of a supposed liquidated damages term and its potential exposure to a penalty challenge, both in substance and effect. When you are drafting such a clause, it is vital to keep these considerations in view, and to think about how it sits alongside connected provisions, including any related terms that operate with it. See: Drafting and negotiating a liquidated damages clause—checklist Precedent: Liquidated damages clause For targeted analysis of the way authorities have treated provisions in commercial agreements that stipulate ‘default interest’, see the following materials: Penalty interest rates in commercial contracts Contract interpretation—distinguishing between liquidated damages and penalty...

This Flowchart This flowchart outlines a process covering key actions and considerations for carrying out an appropriate level of client due diligence (CDD). Use it as a reference each time you take on a new client or begin a new matter...

Watson v Chief Constable of Humberside Police [2025] EWHC 2544 (KB) What are the practical implications of this case? This decision addresses who bears the burden of proof in claims for false imprisonment and assault, and underscores that any detention or use of force by police must be justified by the rationale an officer advances for acting as they did at the material time. It illustrates that disputes should be resolved on the pleaded issues and the evidence tested in court, and not beyond them. Positions resting on a narrative the court rejects will rarely withstand judicial examination, and judges ought not determine matters on hypothetical versions of a party’s case or on speculation. What was the background? The claimant, experiencing several physical frailties and impairments, made an emergency call saying he might cut his own throat owing to the distress he was experiencing. Police officers attended and discovered the claimant seated at a table on the communal lawn...

Higgs v Farmor’s School and (1) the Archbishops’ Council of the Church of England, (2) the Free Speech Union Ltd others as interveners), the Association of Christian Teachers, (4) Sex Matters, (5) the Equality and Human Rights Commission (as interveners) [2025] EWCA Civ 109 A school worker’s success is set to shape how employers and tribunals approach cases where staff spark outrage by airing an increasing range of legally protected views, commonly online. Justice Nicholas Underhill, writing for a unanimous panel, confirmed that employers carry the burden of proof to show any disciplinary step is “objectively justified”. Free speech supporters welcomed the judgment as a landmark in human rights law, granting employees broad room to use unrestrained and provocative language. Susan Kelly, partner at Winckworth Sherwood LLP, said it re‑emphasised the democratic importance of workers being able to say what they believe, “whether or not that belief is popular or mainstream”. Andrea Williams, chief executive of the Christian Legal Centre, stated the ruling declares “loud and clear that...

Commission v Intel Corporation Case C-240/22 P What are the practical implications of this case? The ruling chiefly clarifies the function of the AEC test and identifies where the evidential burden under Article 102 TFEU sits, while also bearing on the EU’s position in its latest draft Guidelines. It further delineates the scope of review the General Court must undertake. The draft Guidelines sought to increase legal certainty in enforcing exclusionary abuses under Article 102 TFEU, regarded as crucial to competition operating effectively. They introduce a soft presumption that rebate schemes can yield exclusionary outcomes, thereby placing the onus on a dominant undertaking to disprove it. More broadly, the Guidelines point to a move away from the AEC test towards an appraisal of the potential effects of the exclusionary practice on all market players. Nonetheless, the General Court’s 2022 judgment, upheld by the Court of Justice, confirms that the burden of proof continues to rest with the Commission...

The creation of the Competition and Market Authority (CMA) in 2013 The establishment of the Competition and Market Authority (CMA) in 2013 coincided with an overhaul of a component of the criminal cartel offence that prosecutors had to prove to convict directors and officers. When the Enterprise and Regulatory Reform Act 2013 (ERRA 2013) commenced on 1 April 2014, the dishonesty element of the cartel offence was scrapped, marking a radical change to what prosecutors had previously been required to establish. Under the revised regime, an individual commits the offence by agreeing, with one or more persons, that two or more undertakings will take part in specified prohibited cartel arrangements (price-fixing, market-sharing, bid-rigging, or limiting output), regardless of dishonesty. Any such arrangements must have occurred in the UK to be caught. As explained further below, this shift is partly offset by new exceptions, covering notification of customers, publication of arrangements, and compliance with a legal requirement, as well as defences, including that the accused did not intend to conceal...

Justification—the ‘justification defence’ This Practice Note explores the concept of justification—often termed the ‘justification defence’—within discrimination under the Equality Act 2010 (EqA 2010). It addresses what may amount to a proportionate means of achieving a legitimate aim. It assesses proportionality in cases of indirect discrimination (EqA 2010, s 19(2)(d)), including where the objective is to prevent discrimination linked to other protected characteristics. It reviews the notion of a provision, criterion or practice (PCP) and considers issues arising in relation to direct and indirect age discrimination (EqA 2010, s 13(2)) and the Heyday case. In doing so, it evaluates objective justification, defence (no discrimination), the burden of proof, the approach a tribunal should adopt, and circumstances where discrimination rights come into conflict. This Practice Note includes references to case law of the Court of Justice of the European Union (CJEU). For guidance on whether judgments of the Court of Justice are binding on UK courts, see Practice Note: Assimilated law—Assimilated case law. Domestic measures enacted to fulfil UK obligations under...

Legal validity of Wills In Scots law, a testamentary writing made after 1995 is treated as valid and self‑proving where the following requirements are met: the testator has signed every page the signing took place in the presence of a witness the witness signed the final page The absence of one or more of these features is not fatal, provided the testator did sign the document. If so, anyone with an interest (for example, an executor or beneficiary) may ask the court to ‘set up’ the writing. This can be done by summary application in the Sheriff Court, or incidentally within other proceedings, and in practice is often pursued when applying for confirmation. The burden of proof rests on the applicant, and evidence will usually be by affidavit unless the court directs otherwise. A decree has the effect of creating a presumption that the document was subscribed by the person granting it. Grant of confirmation Confirmation is the...