Biggar v London Borough Of Havering

In civil proceedings, including allegations of fraud, the standard of proof remains the balance of probabilities. The gravity and inherent improbability of the allegation affect the cogency of evidence required to establish it; they do not create an intermediate or higher standard of proof. A flawed expression of the test, or an unhelpful comparison with the criminal process, does not require a new trial where the judgment read as a whole shows that the judge applied the civil standard and reached a positive factual conclusion. An appellate court will order a new trial only where a substantial injustice has occurred.

The London Borough of Havering appealed from the judgment of His Honour Judge Brandt in the Colchester County Court on 29 June 2000. The judge gave Keith Biggar judgment for sums due under a severance agreement and damages for wrongful dismissal.

The borough had summarily dismissed Mr Biggar after concluding that he had deliberately falsified claims for an essential car-user allowance while disqualified from driving. The judge rejected that allegation, finding that Mr Biggar treated the allowance as part of his salary rather than dishonestly claiming mileage.

On appeal, the parties confined the dispute to whether the judge had used the wrong standard of proof for the allegation of fraud, such that a retrial was required.

Decision

The Court of Appeal unanimously dismissed the borough's appeal. Simon Brown LJ gave the principal judgment, with which Tuckey LJ agreed. Mance LJ delivered concurring reasons.

1. The applicable standard was the ordinary civil standard: proof on the balance of probabilities. Under In re H (Minors) [1996] AC 563, the seriousness of fraud does not raise that standard. It is relevant because serious misconduct may be inherently improbable, so cogent evidence may be needed before the court finds it proved.

2. The county court judge's references to a higher standard and to the likely view of a criminal jury were infelicitous. The jury comparison was unhelpful and inappropriate if treated as decisive. Read as a whole, however, the judge had expressly rejected the criminal standard and ultimately decided the issue as a civil judge.

3. The judge did not merely find that the borough had failed to prove dishonesty to an elevated standard. He positively found that Mr Biggar regarded the allowance as part of his salary and signed the forms on that basis. That conclusion necessarily meant that the civil factual issue was resolved in his favour on the balance of probabilities.

4. Mance LJ agreed that past references to a standard commensurate with the gravity of the allegation required revision after In re H. In context, however, the judge's language made no practical difference to the test applied or to his conclusion.

5. A new trial is an exceptional appellate remedy and requires substantial injustice. None was shown. The appeal was dismissed, with costs under section 11 of the Legal Aid Act 1998.

• Court of Appeal (Civil Division) — dismissed the London Borough of Havering's appeal: [2001] EWCA Civ 411.
• Colchester County Court — on 29 June 2000, His Honour Judge Brandt gave Mr Biggar judgment for sums under the severance agreement and damages for wrongful dismissal.