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Fraud, Burdens of Proof and Pleadings - Andrew Mckie, Clerksroom

18/03/14. Do You Have To Prove Fraud? In the majority of cases, it may be argued that there will be no need to prove fraud, even if there is sufficient evidence in order to plead it. In many cases, the Defendant’s insurer will not want to plead the issue of fraud at Trial, unless it is the Defendant’s insurer’s intention to go after the Claimants for contempt of Court proceedings in the event of a finding of fraud by the Trial Judge.

The reason many Defendant’s insurers will not want to plead the issue of fraud, and simply put the Claimant to strict proof in relation to the issues of breach of duty, causation and quantum, is that if the Trial Judge makes a finding of fraud, it is very unlikely the Claimant’s after the event insurer, will indemnify the Claimant in relation to the issue of costs and the Defendant’s insurer, even after winning a Trial on the issue of fraud, will be left to go after the Claimant for their costs and it is usually the case that the Claimants in these sorts of cases but not in all cases, have very little assets, property or other funds to cover the Defendant’s costs bill and invariably the Defendant’s insurer remains unable to recover their costs in some circumstances for these reasons.

It may be argued that for the Defendant’s insurer in the majority of circumstances it may simply be better that Claimants’ claims are dismissed on the balance of probability as failing to prove breach of duty, causation or quantum, rather than an outright finding of fraud by the Trial Judge.

The only exception to this, is likely to be where...

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