It's All on You! The Burden of Proof and Records in Construction

Construction | Forensic & Litigation Consulting

November 9, 2020

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Maintaining records to meet the burden of proof and demonstrate causation in your construction claim or defence is essential. It’s all on you!

Burden of proof

The burden of proof to be satisfied in construction matters is in line with civil procedures, namely ‘on the balance of probabilities’. This standard is thought to be vague compared to the higher standard of proof in criminal cases ‘beyond reasonable doubt’. However, who has the burden of proof may depend on the circumstances under which a claim arises and the burden can shift from one party to the other in defence of an assertion.1

What does this mean in practice?

No matter who is responsible for deciding your claim, whether that be an Architect, Adjudicator or Arbitrator, you will have to prove your claim on the balance of probabilities. For example, if you respond to a claim saying “no, we did not cause delay due to…you were already very late with…” it will require you to prove that is the case.

The effort between meeting this standard “could be the difference between 50% proof and 51% proof…”2 – a thin line by anyone’s standards. The practicalities of achieving the burden of proof is appreciating the importance of records and how to maintain them, which was discussed in our previous article titled ‘Construction claims: no records, more disputes?

Footnotes:

1: Building contract claims and disputes, Turner, 2nd Edn. (1999), page 424.

2: Burnetts, Carey, ‘On the “balance of probabilities”’ (2019).


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