PROVING THINGS 55: I’LL SAY IT AGAIN: NO EVIDENCE – NO DAMAGES
The judgment of Mrs Justice Jefford in Kingsgate Development Projects Lt -v- Jordan EWHC 343 (TCC) is (yet) another example of a claimant asserting damages but there being no evidence to prove them. The claimant ended up with a judgment for £1 in damages.
“That was the sum total of the evidence. There was no copy of the contract and the terms of the so-called stand down clause; no evidence as to who the parties were; no evidence of the stand down clause and the circumstances in which the stand down clause had been operated; and nothing to relate this to anything alleged against the Defendants. The claim was doomed to failure.”
The action related to rights of way over a strip of land. The claimant claimed that the defendants had interfered with this right of way. The claimant sought an injunction and damages, claiming to have suffered special damage. The defendants counterclaimed for a declaration as to the right of way and sought damages. The judge made a finding as to the extent of the right of way and that the defendants had interfered, to some extent, with the right of way. The judge then considered the question of damages.
THE JUDGMENT ON DAMAGES
(i) Transportation return costs of £2,700.
(ii) Cancellation fees due to lack of access in the sum of £8,400.
(iii) Contractual losses of £5,000 per week commencing on 1 April 2016 and continuing weekly as a result of a stand down clause with Leewood Construction.
(iv) Further losses commencing 1 July 2016 in the event that the Claimant was unable to complete an agreement to let the farm to a major poultry producer, those losses being anticipated as exceeding £100,000.
“Part of the contract allowed for a stand down fee. I can confirm that I excised (sic) this as I have been prevented from gaining the correct access required to do the works, I agreed a reduction to what I was entitled to in the clause so as to avoid a court action on the 11th November when I agreed a settlement of £22,500 plus £200 admin in full and final settlement of the stand down and to void the contract. I can confirm that I have been paid this sum by bank transfer.”
That was the sum total of the evidence. There was no copy of the contract and the terms of the so-called stand down clause; no evidence as to who the parties were; no evidence of the stand down clause and the circumstances in which the stand down clause had been operated; and nothing to relate this to anything alleged against the Defendants. The claim was doomed to failure.
The Defendants also bring a small counterclaim for damages. It is not in dispute that Mr Katz removed Gate no. 3. He said that he did so believing the gate was Kingsgate’s because it opened on to Kingsgate’s land, a belief that does not sit easily with Kingsgate’s claim that the gate is a substantial interference with its right of way. In any event, I accept that the gate, in fact, belonged to the Jordans and that its removal and/or destruction was a tortious interference for which they are entitled to damages. That is put at £300 based on the evidence as to the cost of a new gate and I award that sum.
(i) There will be a declaration that the boundary of Ferndown is the line marked on Rev C as 27 feet from the old hedge line.
(ii) There will be a declaration that the right of way is as shown on Rev C shaded blue.
(iii) There will be an injunction requiring the right of way to be restored at Bend C and requiring Gate no. 2 to be removed.
(iv) Kingsgate will pay to the Defendants, after set-off of the nominal damages, the net sum of £299, plus interest to be assessed.
RELATED POSTS: 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.
- Proving things 49: it is difficult to prove damages when the opinion evidence in your witness statement has been struck out.
- Proving things 50: to prove breach of contract you first have to prove that there was a contract.
- Proving things 51: No evidence of loss – no damages
- Proving things 52: Solicitor’s negligence action fails on all counts: no negligence and no loss.
- Proving things 53: dishonesty some of the times doesn’t mean dishonesty all of the time.
- Proving things 54: getting £2 in damages after claiming £15 million.