PROVING THINGS 40: NO EVIDENCE – NO LOSS: LITIGATION IS NOT A WALK IN THE PARK
A constant motif in this series has been the ability of litigants to arrive at trial and not be able to prove central parts of their case – including damages. This is exemplified in the judgment of Mr Justice Baker in Francis -v- Knapper  EWHC 3093 (QB). After a six day trial the claimants had, the judge found, no evidence at all to prove their claim in damages.
“… in my judgment Mr and Mrs Francis indeed had ample opportunity to prove, or at the very least coherently identify, a case on loss, but failed to do so”
The claimants were suing for damages following their purchase of a a holiday park. It was alleged that misrepresentations had been made by the solicitors and vendor about the condition of the park. The claimants lost for several reasons. However it is instructive to read the judgment on evidence and damages.
THE JUDGMENT ON DAMAGES
The loss alleged is a difference between the purchase price of £1,350,000 that Mr and Mrs Francis paid for the Park and the market value of the Park, as acquired. The evidence as to whether there is any such loss, and if so its amount, is very unsatisfactory. That was in truth conceded by Mr Seitler QC for Mr and Mrs Francis, whose primary submission in the circumstances was that if the Park Representations claim succeeded, I should give judgment for damages to be assessed and directions for a separate assessment of damages. By contrast, Mr Bacon submitted for Mr Knapper and Fursdon Knapper that: Mr and Mrs Francis had had ample opportunity to prove, if they could, that they had suffered a loss, in other words to provide, if they could, satisfactory evidence that the value of the Park as purchased was not the £1,350,000 they paid for it (and if so by how much); the admitted unsatisfactory nature of the evidence at trial meant they simply had not done so; the proper conclusion was therefore that they had failed to prove loss and the claim should be dismissed on that ground whatever the findings might be on other issues.
The principal evidence on quantum was an expert report of Christopher Tucker, a chartered surveyor and registered RICS valuer with over 30 years of experience in the valuation and sale of caravan parks / holiday parks. He was appointed jointly under the case management orders for this trial, and neither party asked any supplementary questions after he provided his report or applied for him to be called at trial to be asked any questions. His evidence is thus agreed. It values the Park in April 2008 at £1,450,000, with no major defects, and expresses the opinion that even if there were major defects they would not affect that valuation if their cost of cure was re-chargeable to chalet owners under the service charge provisions of the lease.
Mr Seitler QC submitted that the latter opinion was not expert evidence, so that I can ignore it. He said the expert was there trespassing on matters of law, in particular he was addressing the question of law whether a subsequent recovery from the chalet owners of the costs of work actually undertaken (if any) would be res inter alios acta so as not to affect the damages assessment in this case even where the need to carry out those works suppressed any valuation of the Park in April 2008 otherwise used in that assessment. I disagree. In my judgment, Mr Tucker was providing an expert opinion on a commercial property market question upon which the court does not have specialist knowledge and requires the assistance of such evidence, namely whether and if so how the re-chargeability of the cost of necessary works under extant leases affects the price willing buyers pay and willing sellers expect to be paid for commercial property of this type.
Given that conclusion, and the expert’s starting valuation of £1,450,000, some £100,000 more than Mr and Mrs Francis paid for the Park, they can only prove loss if they can prove (a) that there were matters at the Park as acquired in April 2008 requiring costly works that have not been taken into account in that valuation, (b) the cost for such works that a willing seller and willing buyer would probably allow to the buyer, by a reduction in price, as of April 2008, if they would not be works re-chargeable under the service charge provisions of the chalet leases, and (c) the extent to which, if at all, those works were indeed not so re-chargeable.
In truth, Mr and Mrs Francis have made no attempt to discharge that burden. They are not assisted by Mr Tucker’s report because he cannot give evidence as to (a) or (c), and can only give evidence as to (b) by reference to primary factual or expert evidence not of his own as to the probable actual cost, assessed as at April 2008, of any works identified under (a). A ‘Scott Schedule’ procedure was ordered for the purpose at least of identifying Mr and Mrs Francis’ detailed pleaded case as to (a), and the probable actual cost of works as I have just mentioned. The Scott Schedule they served under that procedure, which represents the best particulars for any such case they were able to provide in the light of all the disclosure and factual witness evidence in the case, was considered by Mr Tucker in his report to see if he could not at least provide hypothetical valuation opinions, but he concluded that he was not able to do so as the Scott Schedule did not enable him to identify any meaningful assumptions that might be made.
In the circumstances, in my judgment Mr and Mrs Francis indeed had ample opportunity to prove, or at the very least coherently identify, a case on loss, but failed to do so. In a supplementary note for opening, provided at my direction after I had seen his skeleton argument for trial, Mr Seitler QC made a manful attempt to construct a case from the general factual material available. But in my judgment the attempt failed to provide any satisfactory basis upon which I could reach any quantified conclusion as to whether the Park as purchased was worth less than Mr Tucker’s starting point valuation of £1,450,000, let alone less than the £1,350,000 paid for it by Mr and Mrs Francis.
In the circumstances, my finding as to loss is that Mr and Mrs Francis have not shown that, had the inaccurate CPSE answers induced their purchase, loss was caused thereby.”
THE PROVING THINGS SERIES
- Proving things 1: Civil Evidence Act notices will not cut it
- Proving things 2: evidence to support a claim for damages must be pitch perfect.
- Proving things 3: the complete absence of evidence means the court will not speculate
- Proving things 4: Witnesses who just aren’t there.
- Proving things 5: witness statements and failing on causation.
- Proving things 6: “That’s what I always do” & proving causation.
- Proving things 7: If you don’t prove a loss you don’t get an order.
- Proving things 8: a defendant must prove that a failure to wear a seatbelt made a difference.
- Proving things 9: the role of experts
- Proving things 10: “He said, she said”: the difficulties of recollection.
- Proving things 11: Lies, damn lies and…
- Proving things 12: That oral contract is not worth the paper its written on.
- Proving things 13: Loss, there was no loss.
- Proving things 14: proving mitigation of loss
- Proving things 15: damages and evidence: going back to College
- Proving things 16: if you don’t prove it you don’t get it.
- Proving things 17: Heads of damage that were “entirely bogus”
- Proving things 18: Damages; Car hire; Proof & Summary Judgment
- Proving things 19: prove service or you could be caught out.
- Proving things 20: allegations of improper conduct have to be prove
- Proving things 21: when the whole process of investigation is flawed
- Proving things 22: damages, mitigation part 36 (and bundles).
- Proving things 23: serving important evidence late
- Proving things 24: Damages & the “But for test”: when it gets really complexProving things 24: Damages & the “But for test”: when it gets really complex
- Proving things 25: Attempts to smuggle in witness statements do not help (and carry no weight).
- Proving things 26: distinguishing between what you can remember and what you now think you did.
- Proving things 27: Burdens of proof, hearsay evidence and… attempted murder.
- Proving things 28: make unwarranted personal attacks and use a “mud-slinging” expert: that always ends well.
- Proving things 29: Make sure the witness evidence deals with the relevant issues
- Proving things 30: Office Gossip Proves Nothing: The importance of the source of information and belief.
- Proving things 31: witnesses tend to remember what they want to remember.
- Proving things 32: Damages claim struck out as unsustainable: application to amend refused.
- Proving things 33: causation and the burden of proof in claims against solicitors.
- Proving things 34: There is no primer for scuttlers: when your ship doesn’t come in.
- Proving things 35: Reconstruction, documents & memory.
- Proving things 36: credibility and contemporaneous documents.
- Proving things 37: An approach to damages that was “fundamentally deficient throughout”.
- Proving things 38: Proving inability to pay on a security for costs application.
- Proving things 39: You can spend £10 million in costs and still not prove your case.