Our ethos is different from yours

In a decision that very nearly passed me by – because of its civil nature – the Supreme Court of Canada has held that the civil standard of proof is fixed, does not change according to the seriousness of the issue or the improbability of the allegation, and a flexible approach to it is not in law appropriate : FH v McDougall [2008] SCC 53 (2 October 2008).

This last point contrasts with the New Zealand Supreme Court's majority decision in Z v Dental Complaints Assessment Committee (blogged 25 July 2008). A fundamental difference in ethos is apparent: the SCC does not hesitate in this unanimous judgment to acknowledge that a change in the law as it has hitherto been applied is appropriate. The NZSC majority are more conservative, declaring that a flexible approach to the civil standard of proof has worked up to now, so there is no reason to change it. So although the standard in NZ is fixed, it is - strange to say - applied flexibly.

It will be recalled that the civil standard of proof is relevant to criminal law because most preliminary factual issues are determined according to that standard.

The SCC does not refer to the NZSC decision, and the NZSC majority in Z barely refer to the Canadian law (but to the extent that they do, at 117, they mention the flexible approach in professional disciplinary proceedings that has now been overruled).

In FH v McDougall the Court declares (at 40) the following propositions to be wrong:

"(1) The criminal standard of proof applies in civil cases depending upon the seriousness of the allegation;

"(2) An intermediate standard of proof between the civil standard and the criminal standard commensurate with the occasion applies to civil cases;

"(3) No heightened standard of proof applies in civil cases, but the evidence must be scrutinized with greater care where the allegation is serious;

"(4) No heightened standard of proof applies in civil cases, but evidence must be clear, convincing and cogent; and

"(5) No heightened standard of proof applies in civil cases, but the more improbable the event, the stronger the evidence is needed to meet the balance of probabilities test."

No, the only standard of proof in civil cases is the balance of probabilities, there is no intermediate standard applicable on some occasions. The evidence must always be scrutinised with great care. To meet the standard of proof evidence must always be clear, convincing and cogent. And the probability or improbability of the event does not affect the strength of the evidence needed, as a matter of law, although the inherent probabilities will be taken into account by the fact finder.

I suppose that the conflict can be resolved by reading the majority in Z as holding that the flexibility they found in the civil standard of proof is not "flexibility as a matter of law" but rather it is flexibility in the sense that the inherent probabilities, as a matter of practical experience, will always be taken into account by the fact finder. This reading has support at para 105 of Z, but the joint judgment has chosen unfortunate terminology in its insistence on "a flexibly applied civil standard of proof". There are clear indications that the majority in Z intended to support the proposition - and this is put as a rule (para 112) - that serious consequences justify a requirement for evidence of heightened cogency, a proposition rejected in FH v McDougall.

Elias CJ addressed (in dissenting) the different approaches in Z as follows (28):

"It is often said that more grave allegations are less likely to be true and require more in the way of evidence before the trier of fact will be satisfied [footnote: Hornal v Neuberger Products Ltd [1957] 1 QB 247 at p 266 per Lord Morris; Budget Rent ACar Ltd v Auckland Regional Authority [1985] 2 NZLR 414 at p 425 (CA) per Somers J.] I have some doubts as to the extent to which experience bears out the proposition, but in any event it is clear that its application turns on human experience and the particular context, as Lord Nicholls made clear in Re H. Statements such as these have however caused confusion when applied, not to the inherent probabilities which any decision-maker necessarily weighs, but to the standard of proof [footnote: As described by Lord Hoffmann in Re B at para [12]]. The confusion has led to judicial statements which suggest that the standard of proof is itself "flexible", an unfortunate and inaccurate notion. Nor do I think matters are improved by the suggestion that it is not the standard but its application that is "flexible". "Flexibility" is a term I think best avoided in the context of proof, despite its impressive pedigree [footnote: Lord Bingham in B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 at pp 353 – 354 (HL); Lord Scarman in R v Secretary of State for the Home Department, ex pKhawaja [1984] 1 AC 74 at p 113; Lord Nicholls in Re H at p 586]. Proof is made out whenever a decision-maker is carried beyond indecision to the point of acceptance either that a fact is more probable than not (if the standard is on the balance of probabilities) or that he has no reasonable doubt about it (if the standard is proof beyond reasonable doubt) [footnote: Miller v Minister of Pensions [1947] 2 All ER 372 at pp 373 – 374 (KB) per Denning J; Rejfek vMcElroy (1965) 112 CLR 517 at para [11]]."

It is interesting to see the senior appellate courts dealing with the same issues within a brief time span. No doubt the High Court of Australia will chip in soon.