Authors: Davinia Cutajar, Maria Gatt - WH Partners
When two parties square off in a Maltese courtroom, a deceptively simple question looms large: who has to prove what? The answer shapes everything from litigation strategy to ultimate outcomes. In civil disputes, the ancient principle is clear - he who asserts must prove. But as with most things in law, the devil lurks in the details.
The foundational rule is elegantly straightforward. If you claim something happened, the burden falls on you to demonstrate it. This principle, known as onus probandi, has Roman roots and remains the bedrock of Maltese civil procedure. A party alleging a fact must produce tangible, relevant evidence—and not just any evidence, but the best available.
The Latin maxim captures it perfectly: ei incumbit probatio qui dicit, non qui negat - the burden of proof lies upon him who affirms, not him who denies. Maltese courts have consistently applied this principle, recognising that requiring someone to prove a negative would be both impractical and unjust.
The courts have repeatedly emphasised that proving damage falls squarely on the party claiming to have suffered it. This makes intuitive sense - you cannot expect compensation for harm you cannot demonstrate.
What Exactly Must Be Proved?
A claimant must establish two categories of facts: the foundation of their claim (such as the existence of a contract) and the circumstances giving rise to it (such as a breach of that contract). Evidence divides neatly into material facts, those directly in issue, and circumstantial evidence that supports inferences about those facts.
Crucially, civil cases operate on a balance of probabilities rather than the criminal standard of beyond reasonable doubt. This lower threshold reflects the different stakes involved - liberty versus money or property. The evidence must be tangible, relevant, and the best the party can muster.
When evidence conflicts, courts do not simply throw up their hands. They must weigh competing accounts and determine which version is more probable. The principle of in dubio pro reo - when in doubt, favour the defendant - applies far more sparingly in civil matters than in criminal ones. Judges are expected to scrutinise whether one version excludes the other, even on a mere preponderance of evidence.
When The Tables Turn
Here lies one of civil procedure's more subtle distinctions. The persuasive burden - the ultimate obligation to prove one's case - never shifts. It remains fixed from the moment pleadings are filed until judgment is rendered. But the evidential burden, the tactical obligation to produce evidence on a particular point, can bounce between parties like a tennis ball.
The mechanism works as follows: once a claimant produces prima facie evidence supporting their case, the burden shifts to the defendant to rebut it. This reflects the principle of reus in excipiendo fit actor - the defendant, in raising an objection, becomes a plaintiff of sorts and must prove the facts underlying that objection.
This notion of the burden of proof shifting from one party to the other is based on the principle of ‘reus in excipiendo fit actor’, which means that the burden of proof weighs on the plaintiff, but the defendant in objecting becomes a plaintiff.
A recent insurance dispute illustrates these principles in action. When an insurer sought to avoid paying a claim by alleging the driver was intoxicated, the court held that merely showing the driver had consumed some alcohol was insufficient. The insurer bore the burden of proving, on a balance of probabilities, that the driver was actually “under the influence” - a higher bar than simply demonstrating alcohol consumption.
Conclusion
The allocation of proof in Maltese civil proceedings reflects centuries of legal wisdom. The party making an assertion must back it up. While the ultimate burden never shifts, the tactical obligation to produce evidence moves fluidly between parties as the case develops. For litigants and their lawyers, mastering these dynamics is not merely academic - it often determines who prevails.