The general rule is that ‘he who asserts must prove’. The burden is not, however, static and, whilst initially falling to the plaintiff, shifts back and forth between the parties (Abrath v North Eastern Railway Co (1883) 11 QBD 440).

As for the standard of proof, this is determined ‘on the balance of probabilities’. If the court can say ‘we think it more probable [likely] than not’, the burden is discharged (Miller v Minister of Pensions [1947] 2 ALL ER 372).


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