– The purpose of this article is to determine the burden of proof that is applicable in the range of activities covered by the civil offence of market abuse. It also considers the approach adopted in the USA and discusses the extent to which that approach may be worth applying in this country.
– The methodology adopted is a mixture of black letter law in analysing the nature of the burden of proof and the relevant market abuse issues, historical research in examining how the modern law relating to the burden of proof has evolved and comparative research through the consideration given to the US approach.
– The findings are that the burden of proof in market abuse cases is unclear, that the burden may well not be the same in all cases, that clarification is needed on the point and that the approach adopted in the USA offers the advantage of clarity. Therefore, its adoption should be considered.
– The main practical implication is that cases are currently being brought without this key issue being properly considered and clarified.
– The author can find no other research that has been published in this specific area.
