PROVING THINGS 101:A RECAP – THE FIRST 100 POSTS : WHEN BASIC MATTERS ARE JUST NOT PROVEN
When I started this series I never anticipated it would run to 100 posts. Up until last week I had planned to stop after 100. However the Leeds Legal Walk served, inadvertently, as a feedback session for this blog. Since people said they “really liked” the Proving Things series they persuaded me not to stop it here. It will continue indefinitely.
A REVIEW THE FIRST 100 POSTS
In due course I want to look a the role of experts in this series, and take a look at issues such as proving a failure to mitigate loss. However one feature of this series has been to note how many cases get to court in circumstances where there is not one iota of evidence to prove the case being put forward. I am not here talking about the lack of credible evidence but no evidence. This is just a selection of the cases. More than half of the posts in the series thus far have commented on the absence or evidence or the inadequate nature of the evidence called, particularly when a party attempts to prove damages.
THIS WAS STRAIGHT FROM THE OFF
The very first post in the series was a case where the claimant failed to bring live evidence of a key factual matter where it bore the burden of proof. The claimant had to prove that the defendant did not leave the central heating on. It called no live evidence on this point at all. There was no explanation for this. The claimant lost.
CLAIM £300,000 – GET £250
The case of Bacciottini -v- Gotelee and Goldsmith  EWCA Civ 170 was considered in the 13th in the series. The claimants claimed, at one stage, over £300,000 in damages. The judge awarded £250.00. The defendant failed to notice a planning restriction on property, the claimants paid £250 to get that restriction removed. Nevertheless they sought substantial damages from the defendant.
“By reason of the subsequent removal of the restriction the appellants have suffered no loss and there is nothing in respect of which they require to be compensated. That is the nub of it”
GOING BACK TO COLLEGE
The judgment of His Honour Judge Keyser QC in University of Wales -v- London College of Business Limited  EWHC 888 (QB) was considered in the 15th post. The defendant had been in breach of contract, the claimant wanted substantial damages.
“Two matters of fundamental importance must be kept firmly in mind: first, the indemnity principle, which underlies the law’s approach to damages; second, the burden that lies on the claiming party… to prove its loss on the balance of probabilities.”
“… estimates advanced in the course of litigation in support of a claim for substantial damages cannot be accepted uncritically. “
“The time for adducing evidence is at trial… It is unacceptable to wait until I have produced a draft judgment and then seek to address its adverse findings by producing a further document that could and should have been produced in time for the trial. Draft judgments are not an opportunity for the parties to have a second bite of the cherry, whether by rearguing points or by plugging evidential gaps.
IF YOU DON’T PROVE IT YOU DON’T GET IT
In Undre & Down to Earth (London) Limited -v- the London Barrow of Harrow  EWHC 931 a claimant failed, totally, to prove any loss. This was considered in the 16th post
“The company has not put forward any profit and loss calculations of any kind.”
was the least of the claimant’s problems.
ROBIN HOOD GOES DOWN IN FLAMES
The liquidators of the Robin Hood Centre plc sought to recover sums from its former directors. They also blamed the directors for not settling the claim. The judgment can be found in the 37th post.
“If an Applicant presents a largely misconceived claim with an unattainable quantum, it can be unfair to criticise the Respondent for failing to settle and for adopting an intransigent approach.”
“A wholly different approach might have been adopted if the claim had originally been drawn to its proper scale with regard to the bases for the amount claimed, the quantum and the costs involved. It is to be borne in mind when considering conduct that the Respondents were facing a claim with costs on a conditional fee basis which would be potentially ruinous”
SPENDING £10 MILLION IN COSTS AND STILL NOT PROVING YOUR CLAIM
1) The claim that Cumbria has advanced is entirely theoretical and, I am satisfied, cannot and will not ever be implemented in the sense that the remedial works it contends for will never be implemented in the way and at the cost which Cumbria contends for. Furthermore, they are remedial works which no reasonable highways authority in Cumbria’s position would consider as being either reasonable or proportionate, even making due allowance for the fact that on this assumption Cumbria is the innocent victim of poor workmanship amounting to breach of contract by its highways maintenance contractor.
(2) Cumbria could have advanced a claim on a basis which was founded in reality, had some competent person or organisation been asked to consider what, if any, works reasonably required to be undertaken to the individual patches inspected by PTS,
“… this was a notional desktop exercise undertaken without consideration of the real life factors which any reasonably competent highways authority would consider when making the decision whether and if so how to spend its scarce resources. Instead, in my view, it was an exercise primarily driven with a view to maximising this claim.”
NO EVIDENCE NO LOSS
The 40th post considered the judgment of Mr Justice Baker in Francis -v- Knapper  EWHC 3093 (QB). After a six day trial where the claimants sought damages following the purchase of a holiday park the claimants had, the judge found, no evidence at all to prove their claim in damages.
“… in my judgment Mr and Mrs Francis indeed had ample opportunity to prove, or at the very least coherently identify, a case on loss, but failed to do so”
The loss alleged is a difference between the purchase price of £1,350,000 that Mr and Mrs Francis paid for the Park and the market value of the Park, as acquired. The evidence as to whether there is any such loss, and if so its amount, is very unsatisfactory. That was in truth conceded by Mr Seitler QC for Mr and Mrs Francis, whose primary submission in the circumstances was that if the Park Representations claim succeeded, I should give judgment for damages to be assessed and directions for a separate assessment of damages.By contrast, Mr Bacon submitted for Mr Knapper and Fursdon Knapper that: Mr and Mrs Francis had had ample opportunity to prove, if they could, that they had suffered a loss, in other words to provide, if they could, satisfactory evidence that the value of the Park as purchased was not the £1,350,000 they paid for it (and if so by how much); the admitted unsatisfactory nature of the evidence at trial meant they simply had not done so; the proper conclusion was therefore that they had failed to prove loss and the claim should be dismissed on that ground whatever the findings might be on other issues
OPINION EVIDENCE IN WITNESS STATEMENT STRUCK OUT – AGAIN (AND I’VE SAID THIS A LOT) NO EVIDENCE, NO LOSS
The 49th post considered the judgment ofMr Justice Coulson in MacInnes -v- Gross  EWHC 46 (QB). The opinion parts of the claimant’s witness statement where he gave his view of the value of the services provided were struck out. There was no evidence to prove the loss and the action failed.
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.
“…no attempt has been made to put a figure on the loss it is said that the Claimants suffered”
A MARATHON EFFORT WITH NO JACKPOT
It is axiomatic that the general object of an award of damages for a civil wrong is to compensate the claimant for injury caused by the defendant’s wrongful act. Such injury may consist of financial loss; or it may consist of non-financial injury of a kind for which the law provides monetary compensation.
Marathon has not alleged or attempted to show that the unlawful copying of confidential information or any subsequent misuse of that information by the defendants caused Marathon to suffer any financial loss. It follows on the face of it that no injury has been sustained for which Marathon is entitled to be compensated in damages.
In circumstances where the misuse of confidential information by the defendants has neither caused Marathon to suffer any financial loss nor resulted in the defendants making any financial gain, it is hard to see how Marathon could be entitled to any remedy other than an award of nominal damages.
DAMAGES OF £1
The claimant in Marathon assets did twice as well as the claimant in Kingsgate Development Projects Lt -v- Jordan EWHC 343 (TCC) who only recovered damages of £1. This was looked at in the 55th post. There was a claim for special damages and major losses. But, once again, not one jot of evidence.
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.
CLAIM £4,177,782 RECEIVE £46,815: LEASE SAID SOONEST MENDED
On our findings the sole head of claim for which the claimants are entitled to compensation is in respect of their expenditure totalling £46,815 in clearing the site. That may seem a harsh or at least a surprising conclusion, since the claimants have been dispossessed of land which their family has occupied as lessees for several generations. But by the time the land was required for the Crossrail project the businesses carried on from the land had repeatedly failed and, on investigation, it has become clear that the cause of the claimants’ loss was not the acquisition but the fragility of the enterprise from which they had derived their income.
A CLAIM FOR DAMAGES THAT WAS LARGELY WISHFUL THINKING
The 92nd post looked at the judgment in London College of Business Ltd v Tareem Ltd & Anor  EWHC 437 (Ch) when a college claimed damages for being locked out of its premises for a period.
“As it is, the College’s case on damages appears to me to be almost entirely wishful thinking that ignores the influence of other events,”
“The College’s projections of student numbers were perennially overoptimistic and unreliable.”
THE SERIES SO FAR
- 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.
- Proving things 62: “Totally unsatisfactory evidence” at trial fails to prove special damages.
- Proving things 63: “Law Society fails to prove it made a loss”
- Proving things 64: Absence of strong and stable evidence leads to damages award of £2.00
- Proving things 65: Assumptions are not evidence (if the Court of Appeal has to ask for the matter to be made simple you are in serious trouble).
- Proving things 66: It all comes down to the credibility of witnesses: where there’s a will there’s a way.
- Proving things 67: The difficulties when witnesses depart from their statement: multiple inconsistencies damage credibility
- Proving things 68: Claim £4,177,782 receive £46,815: Lease said soonest mended.
- Proving thins 69: Solicitors evidence of (their own) loss “wholly inadequate”.
- Proving things 70: Causation has to be established and will not be inferred.
- Proving things 71: No evidence at all: no damages at all.
- Proving things 72: Bundles when the claimant does the defendant’s job for them.
- Proving things 73: Foreseeability: not a test set in stone but a matter of commonsense.
- Proving things 74: when your evidence is far from fabulous and comes with a “health warning”.
- Proving things 75: Proving causation on an undertaking to pay damages.
- Proving things 76: A recap.
- Proving things 77: an unattractive argument: where a party has caused an absence of evidence it cannot benefit from it.
- Proving things 78: an absent witness is never going to help: defendant’s failure to take contemporary statements leads to adverse inferences.
- Proving things 79: Some things just can’t be a coincidence.
- Proving things 80: Proving a subrogated claim: health insurance costs not recovered in full.
- Proving things 81: Proving mitigation of loss – again: failure to find work was not a failure to mitigate.
- Proving things 82: Its no good fishing – the judge won’t bite.
- Proving things 83: when a defendant does not give evidence: adverse inferences can be drawn: staged crash established.
- Proving things 84: the need to prove a loss is a pressing one: that old fashioned need to prove damages: business interruption claim rejected.
- Proving things 85: an inability to prove even a small sum means it will not be awarded.
- Proving things 86: claimants prove the facts but fail to prove causation: a salutary tale
- Proving things 87: Failing to prove basic elements meant that the full premium was not recovered.
- Proving things 88: Matters you have to prove if you want an injunction: the impact of a six month delay in applying.
- Proving things 89: an approach that is just dangerous: abdication of the lawyer’s role to an expert.
- Proving things 90: the tattoo artist & the cactus shop: prick me one more time.
- Proving things 91: how telling is a “fist bump”? A judge notices things that go on outside the witness box.
- Proving things 92: where the claim for damages was largely “wishful thinking”: £1 million claim reduced to £25,104
- Proving things 93: Proving a will: there are specific rules that the parties should follow.
- Proving things 94: the defendant wants to choose the claimant’s litigation friend and solicitor: evidence in support far from compelling.
- Proving things 95:Oh… why a combative expert witness never helps: leave advocacy to the advocates.
- Proving things 96: a witness may not be telling lies – but their memory may well be biased.
- Proving things 97: an approach that was utterly flawed and hopelessly careless: when solicitors letters became part of a process of unlawful harassment.
- Proving things 98: An easy and obvious route to refute allegations of negligence (which was not done).
- Proving things 99: The role of the jointly instructed expert: Trial judge could prefer views of other expert.
- Proving things 100: It is difficult to prove anything when everyone is lying.