Hornal v Neuberger Products Ltd: CA 1956

Proof Standard for Misrepresentation

The court was asked what was the standard of proof required to establish the tort of misrepresentation, and it contrasted the different standards of proof applicable in civil and criminal cases.
Held: The standard was the balance of probabilities. It was for the plaintiff to establish that the defendant had the intent required for the tort asserted. In practice more convincing evidence will be required to establish fraud than any other types of allegation.
Hodson LJ said: ‘Just as in civil cases the balance of probability may be more readily tilted in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others.’
Morris LJ said: ‘It is, I think, clear from the authorities that a difference of approach in civil cases has been recognized. Many judicial utterances show this. The phrase ‘balance of probabilities’ is often employed as a convenient phrase to express the basis upon which civil issues are decided. It may well be that no clear-cut logical reconciliation can be formulated in regard to the authorities on these topics. But perhaps they illustrate that ‘the life of the law is not logic but experience.’ In some criminal cases liberty may be involved; in some it may not. In some civil cases the issues may involve questions of reputation which can transcend in importance even questions of personal liberty. Good name in man or woman is ‘the immediate jewel of their souls.’
But in truth no real mischief results from an acceptance of the fact that there is some difference of approach in civil actions. Particularly is this so if the words which are used to define that approach are the servants but not the masters of meaning. Though no court and no jury would give less careful attention to issues lacking gravity than to those marked by it, the very elements of gravity become a part of the whole range of circumstances which have to be weighed in the scale when deciding as to the balance of probabilities. This view was denoted by Denning LJ when in his judgment in Bater v. Bater he spoke of a ‘degree of probability which is commensurate with the occasion’ and of ‘a degree of probability which is proportionate to the subject-matter.’
In English law the citizen is regarded as being a free man of good repute. Issues may be raised in a civil action which affect character and reputation, and these will not be forgotten by judges and juries when considering the probabilities in regard to whatever misconduct is alleged. There will be reluctance to rob any man of his good name : there will also be reluctance to make any man pay what is not due or to make any man liable who is not . .’

Morris LJ, Denning LJ, Hodson LJ
[1957] 1 QB 247, [1956] 3 All ER 970
England and Wales
CitedBater v Bater CA 1950
The trial judge had said that the petitioner, who alleged cruelty by her husband, must prove her case beyond reasonable doubt.
Held: There had been no misdirection. Each member of the court had found difficulty in distinguishing between the . .

Cited by:
CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
CitedWeir and others v Secretary of State for Transport and Another ChD 14-Oct-2005
The claimants were shareholders in Railtrack. They complained that the respondent had abused his position to place the company into receivership so as to avoid paying them compensation on a repurchase of the shares. Mr Byers was accused of ‘targeted . .
CitedAN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
CitedBlyth v Blyth HL 1966
The House was asked as to the standard of proof required to establish that adultery had been condoned under the subsection.
Held: Lord Denning said: ‘In short it comes to this: so far as the grounds for divorce are concerned, the case, like . .
CitedKhera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
CitedSix Continents Hotels Inc v Event Hotels Gmbh QBD 21-Sep-2006
The claimant had licensed the defendant to use its trademarks in connection with the naming of their hotels in Germany. The defendants failed to pay their fees as agreed, the claimants terminated the license and now sought payment under the . .
CitedBarlow Clowes International Ltd and Others v Henwood CA 23-May-2008
The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius . .
CitedIn re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
CitedThe Solicitor for the Affairs of HM Treasury v Doveton and Another ChD 13-Nov-2008
The claimant requested the revocation of a grant of probate to the defendant. They had suspicions about the will propounded and lodged a caveat which was warned off and the grant completed. In breach of court orders, the defendant had transferred . .
CitedBritish Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
CitedLindsay v O’Loughnane QBD 18-Mar-2010
The claimant had purchased Euros through a foreign exchange dealer. The dealer company became insolvent, causing losses to the claimant, who sought to recover from the company’s managing director, the defendant, saying that he was aware of the . .
CitedHussain v Hussain and Another CA 23-Oct-2012
The claimant appealed against rejection of his claim for damages after a car accident. The defendants argued that the claim was fraudulent. The defendant driver had been involved in other collisions found to be fraudulent. The claimant appealed . .

Lists of cited by and citing cases may be incomplete.

Evidence, Torts – Other

Leading Case

Updated: 02 November 2021; Ref: scu.196916