Chain of evidence!

You may think that this is a phrase confined solely to criminal matters – and if you’ve watched many tv crime drama shows (especially the wonderfully trashy American ones) you’ll be familiar with the regular story line of what happens when the chain of evidence is broken and the hero comes to the rescue and proves that it was a set up.

Nevertheless, it does come up in civil matters too.

In a litigation dispute, the burden of proof starts with the claimant, who must prove that, for example, the item or work that is the subject matter of dispute was not done correctly or was not fit for purpose.

However, if the Defendant is going to allege that something happened subsequently that was the claimant’s fault, which caused the loss or damage, then it’s the Defendant’s job to prove it.

Take, for example, a recent dispute between a customer and Harrods department store. The customer purchased a bracelet on line, but then returned it saying it was too small for her. Harrods refused to give her a refund, saying that the bracelet had been returned damaged and was now worthless. However, they couldn’t prove it.

Her evidence was that it had been returned in the same condition as she’s purchased it in. Harrods produced the article with some scratches on it but couldn’t prove that it had been returned with those scratches.

Possibly significantly, they couldn’t explain how the item was now worthless, just because of a few scratches. As the Judge herself pointed out, if it really had no value, she was willing to take it off their hands! Their credibility would no doubt have been improved if they’d have offered the customer something for the item, even if it wasn’t for the full price.

Whilst I don’t do much in consumer law, this is still a general principal that can apply to a wide range of situations.

If, for example, the reason you haven’t paid your builder is because you say his works were defective, then make sure you get independent and credible evidence of those defects before you have any remedial works done. If the builder sues you for the money they’re owed, and it’s not in dispute that the works were done, then unless you’ve got a credible expert to say the builder’s works were defective, your defence is at risk. For the record, the builder who came in to do the remedial works is not a credible expert because they’re not impartial.

If in doubt, get advice from an expert, such as a solicitor or a surveyor before you decide on your strategy, and make sure you always have a clear record, including copies of emails and whatsapp exchanges, as well as notes of any conversations or meetings you have. You never know when it might come in handy.

Kleyman & Co Solicitors. The full service law firm. Because all that glitters may not be gold!