the evidential burden shifts to the party with access to the means of doing so. In the example of the fall at the hotel, then, where the claimant claims to have fallen as a result of a spillage, (s)he must prove the presence of the spillage, but the defendant must show when the spillage is likely to have occurred, since the defendant is better placed to identify when this occurred. And, it might be added, if the defendant cannot say when the spillage is likely to have happened, it is unlikely to have been operating an adequate cleaning system at the time of the accident. In the context of claims arising from package holidays, under the law of England and Wales it is for the claimant to prove a breach of standards local to the supplier in question. Where the claimant has fallen at a Spanish hotel, then, (s)he must show the Spanish standard relevant to the claim, whether regulatory standards as to the structure of the premises or local custom and practice as to the systems in place there. It might be thought that as the party with access to the accommodation supplier and with greater commercial leverage over it the defendant should bear the burden of proving what is required by the local standard, since this is more readily ascertainable by the defendant than by the claimant; and after all a responsible tour operator should surely be concerned to ensure that its suppliers comply with the regulations and practices applicable to them. This argument has never been properly ventilated in the higher courts of England and Wales, and accordingly, the precedents we have tend to indicate that the legal and evidential burden of proving local standards rests firmly upon the claimant at all times. However, some of the lower courts can be persuaded that because the matter has not yet been determined explicitly by the higher courts the evidential burden does shift onto the defendant to show the applicable local standard, in the interests of fairness and in accordance with the Directive’s underlying purpose of safeguarding consumer rights. As indicated, it does not appear that either the UK or the EU27 have any intention of taking steps to harmonise the incidence of the burden of proof in these cases, and the tension between consumer protection and Member States’ individual autonomy therefore remains and is likely to continue for the foreseeable future. It is hoped that this article will shine some light on a neglected field and – perhaps – stimulate discussion of whether increased harmonisation might be considered to be desirable. 26 SARAH PRAGER
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