FIFTH BIRTHDAY REVIEW 10: THE PROVING THING SERIES: SIZE DON’T SEEM TO MATTER…
This is the last in the series looking back at key series of posts on this blog over the past five years. Keen observers will note that most series last for about 10 posts. When the “Proving Thing” series started in February 2016 I assumed this would be about that length. (If I had known it was going to be so longstanding I would have given it a more grandiose title – on the other hand the series does what “it says on the tin”). However the cases just keep on giving, usually illustrating the difficulties of proving something, or a total failure to prove a basic element of a claim. I did a review of the series in post 101 which highlighted some key points. One interesting thing about this series is that:

Size does not appear to matter. The biggest firms of solicitors instructing the most eminent of silks (with the most lavish of cost budgets) can still fall down flat on the basic issue of proving things.

Around a third of the posts in this title could properly be entitled “Naff witness statements that should never have seen the light of day” (or “what where they thinking?).
AN UPDATE
The series continues. Since the recap at 101 we have had classic examples of failure to prove things.
 Post 112 Berkshire Homes (Northern) Ltd v Newbury Venture Capital Ltd [2018] EWHC 938 (Ch), a party who simply relied on a accountant’s report did not prove any loss on this basis.
 Post 113 – poor investigation of basic facts and experts going well beyond their remit (experts going outside their remit could be another useful subheading in the series)
 Post 114 – a witness of fact attempting to give expert evidence (and could not do so). This led to the conclusion that “…there is no admissible evidence of any loss.”
A failure to prove something also predominated in Post 114. This was well within the spirit of the series.
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 “mudslinging” 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 evenhandedly 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.
 Proving things 101: A recap – the first 100 posts: when basic matters are just not proven
 Proving things 102: Failing to prove chance of reconciliation
 Proving things 103: Causation when the claimant tried to escape from a balcony
 Proving things 104: “There is no evidence before me as to how the plaintiff would prove the existence of a ghost”
 Proving things 105: Burden on claimant to prove a defect: The difficult task of appealing findings of fact on appeal
 Proving things 106: You didn’t comply with your own risk assessment and you want to appeal: Court rejects defendant’s argument that the claimant failed to prove causation.
 Proving things 107: Proving a “staged crash” to the criminal standard: CCTV evidence provides convincing evidence.
 Proving things 108: Proving professional negligence without expert evidence
 Proving things 109: When a defendant is able to obtain summary judgment in a clinical negligence case
 Proving things 110: Assessing damages “begin with first principles”: proving and assessing loss in a claim for professional negligence.
 Proving things 111: Causation in clinical negligence cases where there is a failure to warn: burden of proof remains on the claimant.
 Proving things 112: Its no use just waving accountant’s reports about.
 Proving things 113: Poor evidence collection: experts straying well beyond their remit and who are “not entitled to reach that conclusion”
 Proving things 114: A witness of evidence cannot give expert evidence: no admissible evidence of any loss
 Proving things 115: When handwritten notes of meeting vary from the typed version (and there is more…)