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 [2017]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 CASE

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

“Damages
    1. So far as Kingsgate is concerned, there is a pleaded claim for special damage. These claims included:
(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.
    1. Although I have found in Kingsgate’s favour in respect of Gate no. 2 and the obstruction of the right of way at Bend C, it is impossible to relate any of these claims to these issues and the claims fail on this basis alone.
    2. In any event, there was no evidence at all in support of claims (i), (ii) and (iv).
    3. In relation to claim (iii), the Claimant adduced the evidence of Mr Keneally, presumably on the basis, albeit his statement did not say so, that he was “Leewood Construction”. Mr Keneally said that he had entered into a works contract for restoration and repair of farm buildings and that:
“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.”
    1. Mr Katz, exhibited but gave no evidence in his statement about, a Barclays Bank document showing a payment of £22,700 to Leewood Construction from an account that did not appear to bear the Claimant’s name.
    2. 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.
    3. By the end of the trial, the Claimant also asked me to make an award of general damages for loss of amenity in the sum of £5,000.
    4. Although I have found some interference with Kingsgate’s right of way, there was no pleaded claim for general damages or loss of amenity. In the circumstances, I award nominal damages only in the sum of £1.
    5. 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.
Conclusions
    1. It follows that:
(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.

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