An individual who asserts must prove
In Emmanuel v Avison & ors  EWHC 1696 (Ch) (8 July 2020), Birss J considered, amongst other things, on whom the burden of proof where a claimant applied to the court and was seeking a declaration that she had not signed a charge document over her property. Had she signed the deed; or was her signature forged (non est factum : for a long-standing case on this subject see Saunders v Anglia Building Society (on appeal from Gallie v Lee)  AC 1004)? If that was the case she wished to run, where did the burden lie to prove what she asserted?
The burden of proof describes the duty which lies on a party either to establish a case, or to establish the facts upon a particular issue. Standard of proof describes the degree to which this proof must be established. Emmanuel v Avison depends on an assessment of where the burden of proof lay in the case.
A classic modern definition of burden of proof is provided by Lord Hoffmann in Re B (Care Proceedings: Standard of Proof)  UKHL 35  1 AC 11,  2 FLR 141 where he said (in an appeal to the House of Lords in care proceedings):
' If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of one is returned and the fact is treated as having happened.'
In Emmanuel v Avison a circuit judge at first instance, had been unable to decide which evidence he preferred between Mrs Emmanuel and the defendants Mr and Mrs Avison. He therefore decided the case on the burden of proof. He said that the burden of proof lay on the claimant and, accordingly, the action by Mrs Emmanuel for a declaration failed.
Birss J defined the issues which Mrs Emmanuel wanted the court to resolve as follows
' Ms Emmanuel brought this claim (i) for declarations that her signatures on the charge and the loan agreement were forgeries and not binding on her, (ii) a declaration that she was not indebted to Mr and Mrs Avison for the sum purportedly loaned pursuant to the Loan Agreement (whether jointly with Mr White or not), and (iii) an order pursuant to Sch 4 of the Land Registration Act 2002 to alter the charges register relating to her property (18 Bennett Park, Blackheath, London) to remove the charge.'
‘Resorting to the burden of proof’
On her appeal to Birss J, one of Mrs Emmanuel’s grounds concerned the way in which the first instance judge had dealt with the burden of proof. He said that the burden of proof that the signature was a forgery remained on the claimant Mrs Emmanuel. Under the heading ‘resorting to the burden of proof’ he referred, as the judge had done, to what Lady Hale had said in Re B (above):
' In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof.'
Re B had turned on a case where the judge had been able to decide which of a number of individuals might have caused injuries, had done so. So in Emanuel the judge deals with contested evidence by asking where does the burden lie; and then whether the party on whom it lies has discharged the burden.
Application of burden of proof
Birss J defined his assessment of the burden of proof – and, indeed, his disposal of Mrs Emmanuel’s claim – as follows:
' The legal rule is, as counsel for Ms Emmanuel submits, that where a given allegation, whether affirmative or negative, forms an essential part of a party's case, the proof of such allegations rests on them. However in my judgment the proper application of that rule in this case does not help Ms Emmanuel. Putting it another way, there is nothing about the facts of the present case which means that the general principle that they who assert must prove does not apply in its simplest way. Ms Emmanuel has brought this claim. In it she is asserting that her signatures on the documents are forgeries, and that she was not indebted to Mr and Mrs Avison. Ms Emmanuel seeks declarations to that effect and an order to alter the register accordingly. Prima facie, the burden of proving those facts is on her.'
The burden of proving the case lay on Mrs Emanuel. She had not discharged it. She was not entitled to any declaration and must remain bound by the charge on her house.