Proving things 74: WHEN YOUR EVIDENCE IS FAR FROM FABULOUS AND COMES WITH A “HEALTH WARNING”: APPLICANT’S CASE PUT BACK IN THE BOX

There is an interesting discussion of the evidence in the Upper Tribunal decision in Fabulous Collections Ltd v Smith (Valuation Officer), Re: 3 Poplar Arcade [2017] UKUT 452. A central part of an applicant’s case essentially disappeared on the morning of the hearing. This shows the importance of scrutinising the evidence carefully well before the hearing, particularly evidence relating to loss or damages.

THE CASE

The appellant was a shop owner in a shipping centre in Solihull shopping centre.  It argued that it should have a reduction in its rates because a competing shopping complex had opened nearby. This, it was said, led to a reduction in the shop’s income.

THE EVIDENCE AT THE HEARING: FAR FROM GLITTERING

A central part of the applicant’s case was that the opening of the competing shopping centre had led to a major reduction in turnover.  However there was an interesting development at the hearing itself.

“26.         There was a change in emphasis between Mr Priestland’s written report and his subsequent oral evidence. In his written report, a major element of the appellant’s case was based upon a fall in trade at the appeal property, which Mr Priestland said was as a result of the opening of Resorts World.  He had produced a schedule of his client’s trade figures for the years 2014, 2015 and half of 2016, which he said showed a dramatic reduction in turnover during the first six months of 2016 compared with 2015.

27.         At the hearing, Mr Priestland effectively abandoned this argument, after it became apparent that his clients had lost the right to sell Pandora jewellery, when Pandora opened an outlet of its own several doors away in September 2015 – shortly before Resorts World opened.  Mr Priestland accepted that his clients had been “severely affected” by Pandora opening, and said that his evidence of trade data “came with a health warning”.  In the light of those concessions I place no weight on the appellant’s trade evidence.”