#13700 - Character Evidence - BPC Civil Litigation

CHARACTER EVIDENCE: CIVIL PROCEEDINGS

DEFINITION: character evidence may be defined as evidence of a person’s reputation or their disposition to behave in a particular way. It includes evidence of good as well as bad character.

THE RELEVANCE OF CHARACTER EVIDENCE

1. Character as a fact in issue: the character of a party might itself be a fact in issue in the proceedings.

2. Character relevant to a fact in issue: the character of a person, although not a fact in issue may be probative of one or more facts in issue. Eg C alleges suffered food positioning at the D’s restaurant due to poor food hygiene, evidence from other parties who suffered food positioning having eaten at the D’s restaurant might be admissible to prove that the D prepared food unhygienically

3. Character relevant to credibility: eg where a witness in civil proceedings has a previous conviction of perjury, the previous conviction is relevant to whether their evidence is worthy of belief.

CHARACTER OF PARTIES:

1. Character as a fact in issue
   - Defamation proceedings is a good example

2. Character relevant to a fact in issue
   - Good character: the good character of a party may not be adduced. The rationale for this is that in criminal proceedings a D’s good character is admissible because there is a fair and just presumption that a person of good character would not commit a crime, whereas no presumption that the D did not commit the civil wrong alleged would arise from his good character.
   - Bad character: the bad character while not itself a fact in issue, may be probative of one or more of the facts in issue in the case. The bad character of the C is also admissible for eg where an application is made in family proceedings for a reside order to recover custody for a child, evidence that the applicant has previously assaulted the child and is therefore not a suitable custodian would be admissible. This type of character evidence is known as similar fact evidence. But note: there is no need for factual similarity! The test is whether the evidence of bad character is logically probative. The process is a two stage process: the judge must decide if the evidence is relevant and second, If he decides that it is, he then has a discretion to refuse to admit it.(note that the court in considering whether to admit evidence on matters that are collateral to the central issues, the judge will have regard to the need for proportionality and expedition)

3. Character relevant to credibility
- Good character: evidence of good character cannot be admitted simply in order to bolster his credibility. However where the other side has attacked his credibility then he may be permitted to cal evidence of his good character in rebuttal.
- Bad character: a party may discredit an opponent’s witnesses by cross examining on his bad character as long as the questioning is relevant. The judge has a duty to prevent questioning that is improper or oppressive and a general discretion to limit cross examination under CPR r32.1(3). The limits of cross examination going to the credit of a witness:

• 1) Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies.

• 2) Such questions are improper if the imputation which they convey relates to matter so remote in time or of such character that the truth of the imputation would not affect or would affect in a slight degree, the opinion of the court as to the credibility of the witness on the matter to which he testifies.

• 3) Such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence. +Proportionality: since the purpose of cross examination as to credit is to show that the witness ought not be believed on oath, the matters about which he is questioned must relate to his likely standing after cross examination with the tribunal which is trying him or listening to his evidence

• PERSONS OTHER THAN PARTIES TO THE PROCEEDINGS

Character relevant to a fact in issue
- Good character: evidence of the good character of a person who is not a party in the proceedings is rarely if ever relevant to a fact in issue. Where it is relevant, it would not be admissible
- Bad character: evidence of the bad character of a 3rd party may be relevant to a fact in issue in the proceedings and may be admissible.

Character relevant to...