Breach of Contract Brief
This brief revolves around a case which has been brought by Henry for a breach of contract by Katherine. The contract concerned was in relation to the supply of jewellery, and the alleged breach is that Katherine did not supply jewellery from an original maker, and chose to supply replica jewellery at the higher price.
In relation to this case, a number of pieces of evidence are intended to be adduced. The first is a witness statement by Otto, a former employee of Katherine, who claims he can validate the accusations made by Henry. The second is evidence of similar conduct by Katherine in relation to a previous customer. Katherine intends to counter these with a claim that Otto's witness statement was made after he was terminated from employment due to sexual harassment concerns, and has supporting witnesses to validate this. This brief will now discuss these pieces of evidence in significant detail accordingly.
Otto's Witness Statement
A number of evidential and procedural considerations need to be taken into account by Katherine in relation to Otto's statement. Specifically, any attempt to deny Henry the opportunity to adduce this evidence would be to rely on the fact that it is hearsay evidence. Hearsay evidence has been reformed in the United Kingdom in the past decade and a half, and thus it is now important to consider the different standards that exist for hearsay evidence between civil and criminal cases.
At this point it is important to note that evidence cannot be excluded from civil proceedings based only on the fact that it is hearsay. This is different from criminal proceedings, where the evidence is required to meet certain criteria otherwise is it excluded on hearsay grounds. If one was to apply this rule to the current case, it would appear that Otto's statement is generally admissible and the onus is upon the court to place as much weight on this statement as it should so determine. In determining this weight, the court needs to take into account the following factors:
reasonableness of the party calling the evidence to have produced the original maker;
whether the original statement was made at or near the same time as the evidence it mentions;
whether the evidence involves multiple hearsay;
whether any person involved had any motive to conceal or misrepresent matters;
whether the original statement was an edited account, or was made in collaboration with another, or for a particular purpose;
whether the circumstances of the hearsay evidence suggest an attempt to prevent proper evaluation of its weight.
Applying this to Otto's witness statement, it would appear that Katherine could argue in cross-examination that the evidence is not worthy of significant weight, on the basis that it was made after Otto was dismissed from employement, suggesting there may be an alterior motive for this statement. This will be examined in more detail later in relation to cross-examination and supporting witnesses.
Similar Fact Evidence
Evidence which demonstrates similar behaviour to that currently in question has an important place in the English civil and criminal legal systems. Similar fact evidence, or 'propensity', can be used to demonstrate that one has a record of committing this type of behaviour, and may serve to strengthen a case in some circumstances. It is important, however, to take note of the relevant statutory and common law guidelines which are in place to ensure that this rule does not unfairly prejudice an accused in a trial.
In the current scenario, Henry intends to rely on evidence which alleges that Katherine engaged in similar conduct to that in question, by providing replica jewellery where original jewellery was requested. It is important to note at this point that the facts do not indicate whether Katherine was convicted of such actions, or whether it is simply an allegation made by Mary, another purchaser of jewellery. The law on evidence of propensity is quite clear: there must be established evidence of a conviction for similar offences in order for a court to consider this doctrine of propensity relevant to the case. As the court has stated:
...in any case in which evidence of bad character is admitted to show propensity, whether to commit offences or to be untruthful the judge in summing-up should warn the jury clearly against placing undue reliance on previous convictions. Evidence of bad character cannot be used simply to bolster a weak case, or to prejudice the minds of a jury against a defendant. In particular, the jury should be directed; that they should not conclude that the defendant is guilty or untruthful merely because he has these convictions. That, although the convictions may show a propensity, this does not mean that he has committed this offence or been untruthful in this case; that whether they in fact show a propensity is for them to decide...
Essentially, this means that just because a person has a record of committing similar actions does not mean to say that they have necessarily committed the same crime this time. The burden is still upon the prosecution to prove guilt; however propensity may help strengthen an already strong case.
In light of all this, it is also important to consider one key point: propensity only generally relates to criminal cases. As this case is a civil claim for breach of contract, there would be no room for propensity in the current proceedings. However, the Civil Evidence Act 1995 does provide that evidence may be adduced where its intention is to prove or disprove the credibility of a person. However, the burden of proof is simply based on the balance of probabilities, and thus the claimant would be required to prove that Katherine's conduct was more likely than not, which needs to be done with clear evidence. This, in my opinion, would not suffice in a civil claim such as this one.
Cross-Examination of Otto's Witness Statement
This brief has already addressed the issue of Otto's witness statement above, and how it is generally admissible under the law of evidence, given that the principles of hearsay do not have general effect in civil proceedings. This switches the onus onto Katherine somewhat in that she is now in a position where she needs to counter and discredit the evidence on the basis of one or more of the abovementioned factors that the court must take into account. This is why cross-examination of the evidence is now important, as Katherine must not allow this evidence to stand if she has any hope of avoiding an order against her.
The facts indicate that this statement contains information which might not be particularly credible, so it is important for Katherine to use this against Henry in order to successfully counter the witness statement. In particular, Katherine alleges that the statement was made after he was dismissed from employment with the company. This suggests that a significant amount of time may have elapsed between the statement being made and the event that the statement refers to. If this is the case, then Katherine may be able to rely on this to force the court to not place significant weight on this evidence. Under statutory law, the court is forced to consider whether the statement was made at or around the time that the event took place that the evidence mentions. This provides a valid argument for Katherine to counter the evidence with.
It is important to note that Katherine is not in a position where she is able to use the fact that Otto is in Bolivia and does not want to attend court. This is because the laws which would ordinarily give effect to this argument only apply to criminal proceedings. Therefore, if this case was a criminal trial then it may be that Otto would be summonsed to court and non-attendance would operate against his evidence, however given that this is a civil case for breach of contract, Katherine can only rely on the above argument.
Another facet of Katherine's intended counterargument is that she is keen to present three witnesses who were employees at the time Otto was terminated, and can essentially validate the fact that Otto was terminated from employment due to a number of sexual harassment claims. It may very well be possible for Katherine to have some reliance upon these witnesses, as the rules of evidence for civil proceedings make evidence admissible where it is intended to prove the character of a person. This means that Katherine may be empowered to adduce this evidence so long as its sole intention to discredit the testimony of Otto, and not to solely advance her position (beyond this) in the claim. There appears to be little in the way of prohibitions preventing Katherine from adducing the testimony of these witnesses in order to defend her from the allegations made by Otto's witness statement.
In order to present these witnesses, Katherine would obviously be obliged to follow the ordinary course in calling witnesses. She (or her legal representative) would need to subpoena these witnesses, which would ensure maximum transparency and reduce the chances of the opposing party claiming unfair surprise at a later stage. This serves to give maximum notice to the court and the claimant as to the course that Katherine intends to take, and it may well be that Henry decides not to proceed with Otto's testimony should they believe it not to be credible after all.
This brief has given an opinion on each of the four evidential (and subsequent procedural) issues that have arisen in relation to Katherine defending a claim for breach of contract. Given that this is a civil complaint, and not a criminal trial, different standards of proof apply, which in turn means that different standards of evidence apply.
It has been proven that hearsay evidence is generally admissible in a civil proceeding, whereas it would most likely not be in a criminal case. It is up to the person who is affected by the hearsay evidence to attack its credibility in a civil case, and to not allow it to stand. In this case, Otto's witness statement is most likely going to be admissible as evidence; however its credibility leaves a lot to be desired. This is particularly due to the fact that Katherine has the ability to attack Otto's credibility based on the time which had elapsed between the event he refers to and his statement, as well as having supporting witnesses which can validate the reason why Otto was terminated from his employment.
It has also been proven that evidence of Katherine's previous conduct may be admissible under the same laws as what Katherine is using against Otto, predominantly because it establishes a question of character. This may create issues for Katherine in terms of the possible success of her defending her case however, from an evidentiary perspective, there appears to be no problems with adducing this kind of evidence in this case.
Hannibal, M., and Mountford, L., The Law of Civil and Criminal Evidence: Principles and Practice (2002), Longman: London
Munday, R., Evidence: Core Text Series (2007, 4th ed), London: Oxford University Press
Murphy, P., Murphy on Evidence (2007, 10th ed), London: Oxford University Press
Civil Evidence Act 1995
Criminal Justice Act 2003
- v Bovell  2 Crim App Rep 27
- v Edwards  EWCA Crim 3244
- v Hanson  2 Crim App Rep 21
- v Highton  1 WLR 3472
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