NOVEMBER 26 — In 2008, in the House of Lords – the apex court as it was then known for the whole of the United Kingdom in civil cases – Lord Hoffmann had the occasion to make the following opening remarks in his judgment:
“If a legal rule requires a fact to be proved (a “fact in issue”), a judge … must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not.
“If the [court] is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof.
“If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.” (see In re B (Children) (FC) [2008] UKHL 35)
It is interesting how his Lordship referred to the values of 0 and 1 on proving a fact. The principle is simple: a fact that is asserted or alleged must be proved. The party who asserts must prove. If the party asserts the existence of facts, he must prove that those facts exist.
If the party fails to discharge the burden, the fact is treated as not having happened. There is no room to say that the fact might have happened.
If the party discharges the burden, the fact is treated as having happened.
It is either 0 or 1.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
