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Guidelines for panel members on the civil standard of proof

Disciplinary Board

(Version 1.0, August 2004)

The civil standard of proof

1. Rule 1.4 of the Faculty and Institute of Actuaries' Disciplinary Scheme states:
    "In all proceedings before a Disciplinary Tribunal Panel or an Appeal Tribunal Panel under this Scheme, the Faculty/Institute shall bear the burden of proving to the civil standard as applied by the Courts of England and Wales in relation to disciplinary proceedings cases that the Respondent is guilty of Misconduct."
2. Thus, in disciplinary proceedings the Faculty/Institute are required to prove to the civil standard, as applied by the Courts of England and Wales, that the Respondent is guilty of misconduct. The standard of proof applied by the Courts of England and Wales in civil cases is that of the balance of probabilities. This means that the party bearing the burden of proof i.e. the Faculty/Institute, must demonstrate that it is "more probable than not" that the Respondent is guilty of misconduct.


Guidelines on the balance of probabilities standard

3. Guidance on the balance of probabilities standard in the context of the civil standard of proof has been provided by the House of Lords (in Re H (minors)[1996] AC 563). In summary, their Lordships' guidance provides that:
  3.1 Proving an event on the balance of probabilities involves a Court being satisfied that an event occurred if it believes that, on the evidence, the occurence of the event is more likely than not. It does not require a Court to be certain that the event did occur.
  3.2 The more serious the allegation made against a person, the stronger the evidence must be in order for a Court to be satisfied that the allegation is established on the balance of probability. Fraud is usually less likely than negligence, and deliberate physical injury is usually less likely than accidental physical injury. Built into the balance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation in question.
  3.3 This does not mean that the standard of proof is higher when more serious allegations are made. It means only that the inherent probability or improbability of an event must be taken into account when weighing the probabilities of whether, on balance, an event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.
4. In applying rule 1.4 of the Disciplinary Scheme, the various panels constituted under the Scheme (with the exception of the Interim Orders Panel, whose suggested approach is outlined at paragraphs 5 to 10 below) should therefore adopt the following approach:
  4.1 The civil standard of proof under the Disciplinary Scheme requires the Faculty/Institute to prove, on the balance of probabilities, facts which amount to misconduct.
  4.2 In assessing whether the Faculty/Institute have satisfied this standard, the relevant panel should ask itself whether (1) on the evidence presented, the Faculty/Institute have shown that it is more likely than not that the facts on which they rely are as they contend, and (2) it is satisfied that those facts as proved lead it to conclude that the Respondent is guilty of misconduct.
  4.3 The more serious the allegation of misconduct, the stronger the evidence presented by the Faculty/Institute must be in order for the relevant panel to satisfy itself that, on the balance of probabilities, the facts are proved and the Respondent is guilty of misconduct.
  4.4 The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.
  4.5 There are no general rules regarding weighing the strength of evidence presented to the relevant panel, as it is a matter of common sense and logic based on the particular circumstances of each case.
  4.6 In the event of concern as to how the panel should apply the civil standard of proof, advice can be taken from the panel's legal adviser.


Standard of proof to be applied by the Interim Orders Panel

5. Special considerations apply in the case of the Interim Orders Panel, whose task is not to determine whether the Respondent is guilty of misconduct, but instead to decide whether an Interim Order should be made against the Respondent before his guilt or otherwise is determined at a later hearing. Under Rule 3.26 of the Disciplinary Scheme, the Interim Orders Panel may not make an Interim Order unless (1) such measure is warranted by the seriousness of the alleged misconduct, and (2) there is sufficient prima facie evidence to support the allegations against the Respondent.
6. Once both the above conditions have been established, Rule 3.27 of the Disciplinary Scheme states that in considering whether to make an Interim Order, the Interim Orders Panel shall have regard to the effect of such an Order on the Respondent, as well as the protection of the public (including the likelihood of further alleged misconduct occurring).
7. The standard of proof to be applied by the Interim Orders Panel is set out in Rule 3.26(b): whether there is sufficient prima facie evidence against the Respondent. But the Panel should address the other matters set out in Rules 3.26 and 3.27.
8. The standard of proof to be applied in order to demonstrate sufficient prima facie evidence is lower that the "balance of probabilities" standard described above. The test has been described as requiring the establishment of an arguable case for what is being alleged, or a "case to answer".
9. In applying Rule 3.26(b) of the Disciplinary Scheme, the Interim Orders Panel should therefore adopt the approach that the Investigating Actuary who applies for an Interim Order must show that, on the basis of the available evidence, an arguable case for the allegations against the Respondent exits.
10. In the event of concern as to how the Interim Orders Panel should apply this standard of proof, advice can be taken from the Panel's legal adviser.


 
Page updated: 3 December 2008
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