BURDEN OF PROOF

I find a worrying trend in business and indeed within our legal system, a trend which undermines the very heart of our society. 

A basic tenet of ‘justice’ is that an accuser has to prove their accused is guilty.  It is not up to the accused to prove their innocence. 

In reality, it may be quicker for the accused to establish an alibi and circumvent the process.  However, the accused does not have to prove innocence and it makes perfect sense in that the accuser must have a proper case in order to accuse else there is no capacity to accuse.

Innocent people are left alone to enjoy without having to defend spurious action.

Fast forward to business.

Big companies seem to be trying to reverse that process especially when they are in a position to alter someone’s capacity to enjoy life.  For instance banks, communications companies or indeed any company we deal with.

The reason is obvious in that it’s far cheaper for a company to accuse without proof and sit back and wait until the accused proves they are innocent.  And, they must prove it or suffer withdrawal of some service.

This reverse thinking has also infected our legal system in services such as the ‘Financial Ombudsman Service’ or FOS.

For example, when a financial institution does the wrong thing and one is forced to engage FOS as an independent third party to help defend oneself, the burden of proof to maintain innocence often rests with the accused rather than the financial institution. 

Given this dysfunction, it also follows that accusing without merit carries a responsibility to return the injured party back to the position they were in prior to the fallacious accusation.  Otherwise the innocent party would have paid in some way for defending their innocence. 

Most of the time this cost in its simplest terms will be time.

Time is the one thing we can never replace and it is utterly wasted when we are required to protect our innocence against fallacious claims.

Using the FOS example, you have been accused of something and you must spend time proving your innocence as its charter is specific in that it requires both parties to conciliate and negotiate and you do indeed prove your innocence perhaps spending 50 hours doing so. 

So, the burden of proof was shifted to the wrongly accused and what’s more, the innocent party has spent time defending the wrongful action.  Time they can never get back and time virtually stolen by the accuser.

Yet FOS deem that the wrongly accused or indeed even a winning persons time has no value and will not direct compensation.

For example, a bank does the wrong thing which drastically effects our capacity to live as we had before their illegal action, we are forced to go to FOS to protect our interests and spend hundreds of hours defending ourselves against the banks illegal actions then at the end of the process the bank walks away with not even an apology whilst we have lost the one thing we cannot replace, time.

Not only have we lost our most valuable resource but we have lost our legal right to the burden of proof remaining with the accuser.  So, in effect, we are paying to have our legal rights removed.

Big business is laughing because their costs are reduced whilst the people they accuse suffer.

Doesn’t seem fair and it is most certainly against the meaning of the Westminster system of law.

Jon Langevad