PROVING THINGS 49: IT IS DIFFICULT TO PROVE DAMAGES WHEN THE OPINION EVIDENCE IN YOUR WITNESS STATEMENT HAS BEEN STRUCK OUT
The dangers of giving opinion evidence in witness statements are highlighted in the judgment today of Mr Justice Coulson in MacInnes -v- Gross  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.
- 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 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.
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.
(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.
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.
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
- Witness statement of opinion is of no assistance and was not admitted.
- Witness statements: when can a lay witness give opinion evidence?
- A basic thing that anyone preparing a witness statement should know: the difference between facts and opinion.
- Speculation and “opinion” evidence from witnesses is to no avail.
- Opinion evidence in witness statements.
- The Rihanna case and opinion evidence in witness statements.
- The dangers of letting witnesses give their opinions: it hinders rather than helps your case.
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.
- Proving things 45: If you can’t prove loss the defendant is going to get summary judgment.
- Proving things 46: Late theories advanced by experts rarely help.
- Proving things 47: Fire in the loft: it wasn’t the mouse man at all.
- Proving things 48: valves, floods, models and causation.