This site uses cookies.

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...

Image ©iStockphoto.com/payphoto

Read more (PIBULJ subscribers only), or click below to purchase the book.

All information on this site was believed to be correct by the relevant authors at the time of writing. All content is for information purposes only and is not intended as legal advice. No liability is accepted by either the publisher or the author(s) for any errors or omissions (whether negligent or not) that it may contain. 

The opinions expressed in the articles are the authors' own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand. 

Professional advice should always be obtained before applying any information to particular circumstances.

Excerpts from judgments and statutes are Crown copyright. Any Crown Copyright material is reproduced with the permission of the Controller of OPSI and the Queen’s Printer for Scotland under the Open Government Licence.