Reversal of the Burden of Proof in Package Travel Cases: the Approach of the Courts of England and Wales Sarah Prager1 Keywords: Burden of proof, package travel, England and Wales, procedural law, substantive law, Rome II Regulation, consumer protection, evidential burden, local standards, EU harmonisation, Member State autonomy, trip and fall, food poisoning. The article examines how courts in England and Wales allocate and manage the burden of proof in civil actions arising from package travel, against the backdrop of the EU Package Travel Directive and future reforms on both sides of the English Channel. While EU law harmonises substantive rules, procedural matters remain within national autonomy. Rules on the burden of proof are treated as part of each system’s substantive law (as reflected in Article 22 of the Rome II Regulation) but have largely escaped harmonisation, producing divergent results between Member States in comparable cases. The article illustrates, through examples such as food poisoning and falls, how unresolved factual uncertainty can make the distribution of the burden of proof decisive for the outcome. Next, it analyses the orthodox English rule ei incumbit probatio qui dicit, non qui negat (“he who asserts must prove”) and the development of a doctrine of evidence under which, if the relevant information is exclusively in the custody of one of the parties, that party assumes the evidentiary (though not legal) obligation to present material capable of proving the facts on which either party may rely. In the specific context of claims relating to travel packages, the article explains that English case law currently imposes on the claimant the burden of proof, both legal and evidentiary, for the violation of local regulations (for example, Spanish safety regulations in a case of a fall in a hotel), despite arguments that tour operators, by having access to and influence over suppliers, are in a better position to establish the applicable local regulations and ensure their compliance. It is observed that some lower courts, invoking equity and the Directive’s consumer protection purpose, have DOI 10.60559/ijtthl2026-003 1 Barrister, England and Wales, Deka Chambers.
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