PROVING THINGS 62: “TOTALLY UNSATISFACTORY” EVIDENCE AT TRIAL FAILS TO PROVE SPECIAL DAMAGES
I wrote about the judgment in Stewart & Chergui -v- The Commissioner of Police for the Metropolis  EWHC 921 (QB), yesterday. There is no harm in repeating one element of that post in this series. I am repeating it because someone recently said to me that it had “never occurred” to them to include anything relating to special damages in their witness statement. (Which may well go some way to explaining why we are at number 62 in this series).
In the course of a three week long High Court case the claimants claimed, among other things, special damages. The judge commented on the evidence given by the claimants in support of their claim for special damages, taxi fares and future treatment.
The evidence given by both Claimants was totally unsatisfactory on the question of special damages. A factor recognised in the written submissions in which the sums claimed are reduced by 50% from the original claim. The First Claimant produced some taxi receipts which did not go to support the contention she raised. Her evidence that she was too frightened to leave the flat unless by taxi was frankly incredible. The receipts demonstrated return taxi journeys from shopping trips. Particularly as this fear was not something that she had raised with her doctor or the psychiatrist specifically instructed in these proceedings. The Second Claimant is the First Claimant’s carer but does not seem to have travelled with her in her taxi journeys. I will not speculate as to where the inspiration for this claim emanated but it is without merit.
Precisely the same criticism applies to the claim made by her on behalf of the Second Claimant for taxi fares to and from south east London to visit his father. He said that he too was too scared to venture out in his immediate neighbourhood but did not begin to explain why that would necessitate taking a taxi across London.
As mentioned above psychiatric evidence was called on behalf of the First Claimant. Dr Bowers gave evidence of his diagnosis based on an interview with the First Claimant on 1 August 2014 for one hour. He only had the information which she provided about the incidents, tailored by her to enhance her claim. He described her as suffering from stress caused by “prolonged and protracted intrusions into her personal space”. He found that she had previously suffered from depressive symptoms “in response to life’s stressors”. He had been asked to opine on her inability to attend courses, at that stage there was a claim for loss on this basis. It was clear that he had not previously seen all her other medical records as he was not aware that other causes, such as dizzy spells, had been the explanation for her non-attendance. He said that “absent any police action she would have needed anti-depressant” medication anyway. The sum of £2,000 is claimed for a series of privately funded counselling sessions to be carried out at some unspecified date in the future. No evidence was called to show that she had sought treatment after that diagnosis in 2014 at the hearing in 2016. I do not find any evidential basis upon which that claim is made out.”
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.
- Proving things 55: I’ll say it again: No evidence – no damages.
- Proving things 56: A judge will not speculate when things could have been proven.
- Proving things 57: Lease said soonest mended: claim for substantial damages fails (and guess the reason)
- Proving things 58: Failure to prove causation leads to award of nominal damages.
- Proving things 59: To get special damages you have to plead them and prove them.
- Proving things 60: Putting seaweed out of the window and the judge who was even-handedly offensive
- Proving things 61: More on social media: Facebook Entries & witness credibility.