PROVING THINGS 45: IF YOU CAN'T PROVE LOSS THE DEFENDANT IS GOING TO GET SUMMARY JUDGMENT

December 18, 2016 · by · in Civil evidence, Damages, Uncategorized, Witness statements

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 [2016] EWHC 3727 (Comm.

PRACTICE POINTS

This is a classic case of a party asserting a loss but with no evidence to prove or substantiate that loss.

THE CASE

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.

  1. On the first aspect (loss by CBG), the second witness statement of Michael Watson is of little help. I highlight the following points in particular:
(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.

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