PROVING THINGS 134: WINNING A FEW BATTLES BUT LOSING THE WAR: ALL IS NOT ROSY IN THESE CLAIMANTS’ GARDEN

Law students have probably already been taught, and will be lectured for generations to come, about the implications of the Court of Appeal decision in Lejonvarn v Burgess & Anor [2017] EWCA Civ 254. If any of those law students plan to go into practice then they need to read the judgment after trial today in Burges & Anor v Lejonvarn [2018] EWHC 3166 (TCC). The claimants in that case may have won the first battles, at the  trial however the demonstrably lost the war.  This is as strong an example of a failure to prove things as you will ever find.  The claimants claimed nearly £360,00 and received precisely nothing.  This is likely to prove an expensive day out for privately funded litigants (or indeed any litigants).

” I consider that the Claimants could and should have attempted to identify what actual, if any, losses were suffered as a result of the breaches of alleged. To claim that the Defendant is liable for the global claim offends common sense and I find it wholly unsupported by the evidence which I have heard and read.”

THE CASE

The claimants and the defendant were friends and neighbours. The defendant, who had worked as an architect, helped the claimants in the development of a garden.  After the relationship between the parties broke down the claimants brought proceedings against the defendant.  At a trial of a preliminary issue it was held that the defendant owed the claimants a duty of care even though her services were not being provided for reward. That decision was upheld by the Court of Appeal.

THE TRIAL

This was the second trial.  The defendant had ceased to be involved in the development of the garden when there was a dispute over the budget. The claimants’ claimed £359,228.52,  the original budget was £130,000

OUR OLD FRIEND WITNESS CREDIBILITY

The judge considered the question of the claimants’ credibility,  he found that the first claimant’s evidence was unsatisfactory. He “gave a lot of evidence about what he thought the claimant was doing but he was in Majorca for significant periods…”

The judge stated that, except in one respect, “I prefer to accept the Defendant’s evidence supported by the contents of the contemporaneous note which was written when the parties were still co-operating and were still friends.”

THE CLAIMANTS’ “SCATTERGUN” APPROACH

The judge observed that the nature of the claimants’ case had developed over time “Despite this claim having been case-managed by at least eight different full-time or part-time TCC High Court Judges and despite Written Opening and Closing Submissions running in length in excess of 250 pages, the nature of the case advanced against the Defendant is still not clear and the precise breaches of duties alleged against the Defendant are still not clear.”

  • “… the Claimant’s claim for negligent design and project management lacks credibility and conviction.”  There was an allegation of defective drawings.
  • In any event the Claimants are unable to identify any drawings produced by the Defendant which caused any defective construction or any advice which was given negligently.
  • The claimants’ case on negligent design and project management “is even more threadbare”.
  • The defendant was found not to be in breach of any of the duties of care alleged.
  • In relation to the alleged design of a path “a requested design change which was never implemented could not seriously give rise to a claim in negligence.”
  • The Claimants, I consider, have done what Mr Justice Coulson (as he then was) warned against … that is to assume that any claim for bad workmanship against the contractor must automatically be reflected in a claim against the Defendant on the basis that if there is a defect, then the Defendant has been negligent for not identifying it and having it remedied…”
  • “In this case, the Claimants made little or no effort to explain what defect the Defendant should have identified the alleged defects and non-conformities and did not even put to the Defendant that she acted in breach of any duty of care in failing to identify the alleged defects and non-conformities“.
  • Some of the allegations of negligence related to matters that had occurred after the Defendant had ceased to be involved “No claim in negligence could possibly be suggested.”
  • In respect of some of the allegations the judge observed “These claims are, on any view, hopeless and no claim in negligence against the Defendant in respect of these claims should have been pleaded, let alone pursued.”
  • In relation to the Claimants’ claim for damages, which was put simply on a claim for £359,228.52 – the cost of completing the garden the judge observed:

I consider that the Claimants could and should have attempted to identify what actual, if any, losses were suffered as a result of the breaches of alleged. To claim that the Defendant is liable for the global claim offends common sense and I find it wholly unsupported by the evidence which I have heard and read.”

“Furthermore I do not understand why the Defendant is responsible for defective works, if any, carried out by the Claimants’ contractor both before and after 9th July 2013.”

SUMMARY: THE CLAIMANTS’ WERE NOT SEEKING FAIR AND REASONABLE COMPENSATION

“To pursue this claim suggests that the Claimants seek to punish the Defendant for her alleged negligent mistakes rather than seek fair and reasonable compensation for her alleged mistakes.”

THE CLAIMANTS RECOVERED NOTHING

If anything this decision raises the issue of whether it was prudent to order a split trial in this action. The original trial was held without all the evidence being adduced. The claimants managed to establish that a duty of care was owed, the defendant then established that there was no breach of any such duty and no loss.