PROVING THINGS 49: IT IS DIFFICULT TO PROVE DAMAGES WHEN THE OPINION EVIDENCE IN YOUR WITNESS STATEMENT HAS BEEN STRUCK OUT

Mediatelegal

The dangers of giving opinion evidence in witness statements are highlighted in the judgment today  of Mr Justice Coulson in MacInnes -v- Gross [2017] EWHC 46 (QB). The opinion parts of the claimant’s witness statements were struck out. There was no evidence to prove the claimant’s case.

KEY POINTS

  • At the start of the trial the judge struck out those parts of the claimant’s witness statements which attempted to give opinion evidence as to the value of the services he had provided.
  • The claimant’s (attempted) opinion evidence did not fall within one of the exceptional categories in which opinion evidence would be permitted.
  • The evidence was vague and meaningless in any event and would not have been admitted for that reason.
  • There was no evidence of the loss or services alleged.
  • The court would not adjourn the assessment to allow the claimant to gather evidence and assess damages at a later hearing.

THE CASE

The claimant brought an action for €13.5 million alleging breach of an oral contract.  As an alternative he claimed damages on a quantum meruit basis.  The claim for breach of contract failed. The judge held that there was no evidence to support the claim. The claimant’s opinion evidence as to the value of his own services having been struck out on the first day of trial.

THE JUDGMENT

    1. In his first witness statement, and in a short second witness statement, the claimant sought to state his own opinion of the value of his services. This evidence was not linked to the services he provided (the evidence of which, as I have said, was very limited) but appeared to be a belated attempt to plug the gap and provide some vague evidence of market value which, on the claimant’s case, would have kept some sort of alternative claim alive. The difficulty with this evidence was that it was discursive (“privately held firms owned by shareholders focused on maximising shareholder value typically seek to incentivise management primarily by the increase in value which they can achieve for their companies on a sale or IPO”) and tangential (reference to an American study showing that the mean equity ownership for CEOs of privately held companies was 7.80%, compared to 3.57% for CEOs of public companies, by reference to data from 1996 to 2004). The claimant’s opinion evidence produced no hard figures of any kind and, being unrelated to the services performed, did not usefully advance an alternative calculation. It did not provide any solution to the underlying difficulty with the pleaded quantum meruit claim, namely that it was presented as a global, all-or-nothing claim.
    2. The first defendant objected to the admissibility of the opinion evidence in the claimant’s witness statements. That was the matter on which I had to rule on the first day of trial. For the reasons noted above, I allowed that application. In summary, that was because:
(i) The valuation evidence, such as it was, did not go to any pleaded issue, there being no pleaded claim for an alternative sum by way of the quantum meruit.
(ii) It was evidence of opinion from the claimant himself, and there was nothing to suggest that any of the exceptional rules that sometimes allow that kind of (otherwise inadmissible) evidence applied here. Certainly nothing was drawn to my attention that would have put the claimant in one of those exceptional categories.
(iii) Even if there had been no pleading point, and even if the evidence had otherwise been admissible, I would not have allowed it because it would not have been of any utility to the court. It was much too vague: a series of generalised assertions about what might generally be an appropriate approach in other circumstances, which was unlinked to the services actually performed by the claimant in this case.
    1. For all these reasons, therefore, I struck out the offending parts of the claimant’s statements. Thus, there was no pleaded claim for an alternative amount, no proper schedule of services provided or value to be attached to them, and no relevant or admissible evidence in support. In those circumstances, whether by accident or design, the claimant has not put forward any alternative claim for a quantum meruit. Although in his closing submissions, Mr Mansfield QC sought to maintain that I could still find some lesser sum due, I reject that submission for the same reasons noted above.
    2. In addition, there was a somewhat half-hearted suggestion that I should do what Jacob J did in Vedatech and send the alternative quantum meruit claim off for assessment by a third party. That would be wholly inappropriate in the circumstances as I have found them to be. First, there is no quantum meruit claim against the first defendant personally. Secondly, the claimant has always been aware of the possibility that, in these proceedings, he may need to advance an alternative quantum meruit claim which did not rely on the €13.5 million, and has deliberately chosen not to do so. It would be unjust and contrary to the overriding objective to give him the opportunity to do so now, following the failure of his pleaded claims.”

OPINION EVIDENCE IN WITNESS STATEMENTS

The proving things series