The burden of proof asks who must establish a point; the standard of proof asks how convincing the evidence must be.
In ordinary civil litigation the standard is generally the balance of probabilities: more likely than not. Ombudsmen and complaint schemes are not all courts, but they still weigh evidence and decide disputed facts using their own fair/reasonable processes.
In consumer complaints, you rarely improve a case by repeatedly saying “they must prove it”. Identify the disputed fact, who is asserting it and which records should objectively establish it.
Key points
- Burden and standard are different concepts.
- Civil “balance of probabilities” is not the criminal “beyond reasonable doubt” standard.
- Ombudsman schemes apply their own procedural rules and may make findings from available evidence.
- A party with control of relevant records may reasonably be asked to produce them.
Balance of probabilities
This means the decision-maker concludes a fact is more likely than not, considering the evidence as a whole. It does not mean a mathematical 51% calculation.
Evidence gaps
If an organisation asserts that a notice was sent, relevant evidence might include the notice itself, system generation record, dispatch log or account note. Absence of one record does not automatically prove non-sending, but the quality of evidence matters.
Ombudsman context
Do not assume courtroom evidence rules apply identically. Check the scheme rules and focus on reliability, relevance and fairness.
In practice
- Ask what evidence would normally exist if the asserted event occurred.
- Avoid absolute claims where the evidence only supports inference.
- Use “the evidence does not establish…” when that is more accurate than “this definitely never happened”.
What to do
A practical next-step plan
- Identify disputed point.
- Identify available records.
- Assess reliability and gaps.
- State the conclusion proportionately.
Common traps
Things that often confuse the issue
- Using criminal-proof language in ordinary consumer disputes.
- Assuming silence in a file conclusively proves an event did not happen.
- Demanding the other side prove facts you positively assert.