- The standard of proof raises issues to do with fairness and equality. The standard seeks fairness, because the defendant cannot be held responsible for a wrongdoing if there is only flimsy evidence against them. There are problems, however, because a principle of fairness is consistency, and the meaning of the civil standard is ‘personal satisfaction’ that the plaintiff is right – this means that judges and juries may interpret the standard of proof differently in each case. This means there is not truly one consistent standard applied to all plaintiffs and it is difficult to argue that the standard is strict and objective, and that every defendant is equal in the trial process. Also, the standard of proof does not treat every type of allegation equally. For example, Briginshaw suggests that more evidence will be required to prove a respected professional ‘probably’ acted in a dishonest or fraudulent manner than to prove that a less professional or respected defendant did.
2. Because the standard of proof is judged subjectively by the decision-maker according to each case, the principle of equality is not achieved. An element of equality between parties is consistency, and the meaning of the civil standard is ‘personal satisfaction’ that the plaintiff is right – this means that judges and juries may interpret the standard of proof differently in each case. This means there is not truly one consistent standard applied to all plaintiffs and it is difficult to argue that the standard is strict and objective, and that every defendant is equal in the trial process. Also, the standard of proof does not treat every type of allegation equally. For example, Briginshaw suggests that more evidence will be required to prove a respected professional ‘probably’ acted in a dishonest or fraudulent manner than to prove that a less professional or respected defendant did. Each defendant is theoretically subject to the same, equal standard, but in practice this is not the case.