PROVING THINGS 45: IF YOU CAN'T PROVE LOSS THE DEFENDANT IS GOING TO GET SUMMARY JUDGMENT
This series (and this blog) have looked at several cases where a party has asserted a loss but not been able to prove it. There are a large number of cases where a party fails to put the basic information before the court to show that any loss has incurred. This can be seen in the judgment of Mr Justice Knowles in Tchenguiz -v- Grant Thornton UK LLP  EWHC 3727 (Comm.
This is a classic case of a party asserting a loss but with no evidence to prove or substantiate that loss.
The claimants were bringing an action against the defendants alleging conspiracy and malicious procurement in an investigation by the Serious Fraud Office. The Defendants sought summary judgment. One of the claimants (“CBG”) was an adviser to the claimants. At an earlier hearing the judge stated that there was no evidence the CBG had suffered any loss.
CBG’S ATTEMPT TO INTRODUCE EVIDENCE OF LOSS
CBG put in further evidence in an attempt to show it had, arguably, suffered loss (partially arising from a SFO search). The judge commented on that evidence.
(a) The witness statement brings in reference to a loan from CBG to Aztec Acquisitions Limited which finds no reference in the losses pleaded in the Particulars of Claim.
(b) The witness statement does offer a calculation for time wasted by CBG’s management, but this is calculated by reference to salary (a liability regardless of the search of its premises). No attempt is made to show that any amount was not earned by CBG over the period of disruption caused by the search that would otherwise have been earned.
(c) The witness statement does attribute redundancy costs (including larger ex gratia payments) as a cost to CBG but does not explain or document these, or their relationship to the search of its premises, to any satisfactory degree. I am entitled to bear in mind that this is a second attempt, and it is by someone in Mr Watson’s position with all the access to information that must be available to a director and Group Chief Financial Officer.
(d) The witness statement refers to fees paid by CBG for legal, strategic, investigation, reputation management, and technology services, but again (and again this is a second attempt, and from someone in Mr Watson’s position) does not explain or document these, and their relationship to what CBG says was wrongly done to CBG, to any satisfactory degree.
(e) The witness statement seeks to explain an assertion in a previous witness statement made by Mr Watson that “there was a cost resulting from the inability to market and re-let [commercial premises in Park Lane] of £728,532”. Mr Watson had previously said that CBG was a licensee of the premises that recharged the cost to other companies owned by the Trust. Mr Watson now says that the cost asserted is the rent and associated costs for a 15 month period until the premises were surrendered to the landlord. He does not show why the premises were not surrendered (or re-let) in that period, or how CBG (a licensee) was liable for rent. Also importantly, he does not say CBG’s ability to re-charge ceased, or explain why it did if it did.”
THE RESULT: DEFENDANT ENTITLED TO SUMMARY JUDGMENT
For this, and other reasons, the defendants were granted summary judgment against CBG.
- If you can’t prove it you don’t get it.
- Silence on key issues does not prove your case
- Pleadings proof and evidence.
- Highwaymen, evidence and damages.
- Proving matters by evidence: a lesson from the family court.
- Evidence: proving damages and interest on damages: you can’t sugar the pill and have to prove the loss.
- Witness statements and proving loss of earnings.
- Proof of facts: the basic principles summarised.
- Causation and evidence – a burning problem.
- Making a finding of fraud without evidence 3.
- If findings of dishonesty are to be made then witnesses have to be heard.
- Making findings of fraud without a party being represented 2: a hearing in the administrative court
- Pleading and proving allegations of fraud or dishonesty: useful guidance
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.
- Proving things 41: Proving damages – you are not going to get a second bite of the cherry.
- Proving things 42: silence does not prove inducement.
- Proving things 43: How the Court decides: a Primer.
- Proving things 44: Findings of Fact, Walter Mitty and Witness Training.