PROVING THINGS 41: PROVING DAMAGES – YOU ARE NOT GETTING A SECOND BITE OF THE CHERRY
There was one part of the argument in Francis -v- Knapper  EWHC 3093 (QB) that justifies closer examination. That is the claimant’s suggestion that the question of damages be put off. A party struggling to prove damages at trial is likely to struggle in an application to have the issue of damages heard later.
THE CLAIMANT’S SUGGESTION
“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.”
That suggestion was rejected by the judge who found that the claimants had failed to prove any loss.
A ROBUST REJECTION OF AN APPLICATION (AT TRIAL) FOR DAMAGES TO BE ASSESSED LATER
The idea that, because the defendant was having difficulty in proving damages, an assessment should take place later, was robustly rejected by Mr Justice Norris in Odone -v- Hawardan Services Ltd  EWHC 1694 (Ch).
The claimant was bringing an action for damages for breach of bailment.
Counsel for Shannon Odone asked that these matters be put off for enquiry once questions of liability had been addressed. I refuse that application. This was the trial of the action. I bear in mind that it came before me on transfer from another venue because another judge felt (at the last minute) unable to take it, that the parties had already suffered the inconvenience of an earlier adjournment, and that the trial was squeezed into what time was available. But it was the scheduled trial. HAS and Caroline Craft came to meet to entire case pleaded against them. It would be most unfair to put them to the worry and expense of a further trial (and absorb resources that could be made available to other litigants) simply because Shannon Odone had not put her evidence in order before trial.
The value of the spares converted by HAS and Mr Middleton is established by the sale price achieved by Mark Petrie: that is £7500. That is the only properly grounded finding that can be made. The more expensive process of taking an account would (on the material I have) yield the same result: that head of relief was (rightly) not pressed.
I dismiss all other damages claims. Quite apart from questions of causation and remoteness (which were simply not addressed at trial and face apparently insurmountable difficulty) there is simply no reliable evidence by reference to which properly to conduct any assessment.”
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.
- Proving things 40: No evidence – no loss.