2018: A NEW YEAR RESOLUTION FOR LITIGATORS: DON’T LEAVE MATTERS TO CHANCE – LEARN TO PROVE DAMAGES

For nearly two years this blog has documented issues (and often failures) when parties fail to prove things.  In a surprising number of cases the failures are very basic. Proving things is the basic job of the litigator. However we continually come across cases where this basic task is not even attempted.

AND THE PROOF OF THIS IS…

Here are some selected cases from last year. They cover the entire range of litigation.  These are far from being the only examples.

NOT EVEN A LETTER TO PROVE A CLAIM OF £136,000

One Fish Company Ltd v Iceland Foods Ltd [2017] EWHC 3366 (Comm). The claimant made a claim for £136,459 in damages, a sum it said it had to pay to a supplier. Not one document was put before the Court to support this.

“I can deal shortly with the sum of £136,459 which is said to be payable to Hofseth. The Claimant’s case in this regard depends wholly on the evidence of Mr. Lag. I was not told how this sum was calculated nor whether it related to 239 tonnes (the quantity said to have been ordered from Hofseth), 200 tonnes or 109 tonnes. During cross-examination Mr. Lag said that he had received a letter from the Chief Executive of Hofseth giving notice of a claim but no such letter has been put before me…The burden was on the Claimant to prove its claim at trial and it has failed to do so. Accordingly, even if I had found for the Claimant on the claim I would not have accepted that the alleged loss of £136,459 had been proved.”

A DERELICT HOUSE IS UNLIKELY TO BE A A RENTED HOUSE.

Khan v Stockton-On-Tees Borough Council [2017] UKUT 432 (LC) The applicant made a claim for loss of rental income on a property that had been derelict for some time.

“There is no evidence that, after a long period of the property lying empty, the claimant had decided to refurbish it and would have done so had it not been for the scheme.  Secondly, the details of the claim were entirely speculative.  There was no evidence in support of the rental income level (whichever it was), or choice of deduction for management costs and voids. I make no award of loss of rent in this claim.”

YOU WOULD THINK LAWYERS WOULD KNOW BETTER…

Hersi & Co Solicitors, R (On the Application Of) v The Lord Chancellor [2017] EWHC 2667 (TCC).  The claimant solicitors made a claim for loss of income following a failure to award it a legal aid contract.

“There was no other witness evidence in support of the damages claim. In addition, no documentation of any sort has been disclosed to make good any of the component figures within the claim. With considerable understatement, Mr Westgate described the evidence referred to above as “concise”.

Given that there was no other evidence on damages, I would describe it in a rather different way: in my view, it was wholly inadequate to support the pleaded damages claim. Thus, there was no evidence before the court at the time of the trial which could have supported any special damages claim whatsoever. There was therefore nothing for the court to adjourn to a later date.”

AND ITS LAWYERS AGAIN…BUT A WHOLE GROUP OF THEM

Socrates Training Limited -v- The Law Society of England and Wales[2017] CAT 10.  This case was unusual because the Law Society was seeking to prove that it made a loss from providing training.

“We note that by letter from its solicitors to the Tribunal written after the conclusion of the trial, the Law Society restated its case to assert that the CQS is loss-making on “a standalone basis.” We doubt very much that even that conclusion can be drawn robustly given the method used for cost allocation, but in any event, the CQS of course is not a standalone business. We therefore cannot accept the submission that the CQS has had to be subsidised from the Law Society’s practising certificate income. Overall, we conclude that it is impossible on the evidence before us to determine whether or to what degree, when considered in terms of avoidable costs, the CQS as a whole is profitable for the Law Society, but it seems clear that by 2014-15 the supply of the CQS training courses generated a substantial income stream and made a positive contribution to overheads.”

NOTHING TO DO WITH THE CAB RANK RULE: BUT THE COURT WAS NOT GOING TO BE TAKEN FOR A RIDE

Stewart & Chergui -v- The Commissioner of Police for the Metropolis [2017] EWHC 921 (QB) The schedule of damages in a personal injury case included claims for 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.

  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.””

A 31 DAY TRIAL LEADS TO NOMINAL DAMAGES

Plantation Holdings (FZ) LLC -v- Dubai Islamic Bank PSJC [2017] EWHC 520 (Comm) After a 31 day trial. After which the claimant recovered only nominal damages.

“… it is very difficult indeed (if not impossible) to see how Plantation can really have suffered any loss which would merit an award of anything more than nominal damages. Plantation has, however, made no attempt at quantifying its loss by reference to that period, even in the alternative. Given this, it would have been open to me to take the view that no damages should be awarded at all. I am, however, persuaded that it would be appropriate, in the circumstances, to make an award of damages, albeit only in a nominal amount.”

NO EVIDENCE: NO DAMAGES

 Car Giant Limited -v- the Mayor and Burgesses of the London Borough of Hammersmith [2017] EWHC 197 (TCC). The claimant made numerous claims for costs and expenses following the end of a lease.

1. As regards the work not carried out, no explanation has been put forward by the Claimants as to why such work has not been done, some six years after the Valuation Date. No evidence has been called to suggest that such work will ever be carried out and I have no evidence before me to suggest that those outstanding works are serious or substantial; indeed to the contrary, the fact that the units have been let at a market rent suggest that what is outstanding is minor or unimportant. It would seem to me therefore that I cannot deduce or assume that this further element of cost should be taken into account in arriving at the diminution of value.

2. There is no other evidence before me to suggest that notwithstanding these outstanding repairs the reversion has been diminished by an amount equivalent to or to be derived from the cost of remedying these remaining defects.

   A claim for professional fees was similarly unsuccessful.

“The only remaining head of claim is for professional fees in the sum of £38,935.84. No evidence has been called in relation to this matter and I therefore make no award in relation to this claim.”

THE COURT WILL NOT SPECULATE

Starbuck -v- Patsystems (UK) Limited [2017] EWHC 397 (IPEC). The judge rejected a counterclaim.

“In the end it seems to me that I am being asked to speculate about things which Patsystems could quite easily have proved by proper evidence… and I see no reason why I should speculate. Hence I conclude that Patsystems has not proved that the ACE software reproduces the expression of the intellectual creation of NSA version 3.1, and the counterclaim accordingly fails.”

YOU MAY HAVE A RIGHT OF WAY: THERE IS NO RIGHT TO DAMAGES

Kingsgate Development Projects Lt -v- Jordan [2017]EWHC 343 (TCC) The claimant made a large claim for damages in a right of way of claim. In the end it received £1 in nominal damages.

“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 £15 MILLION: TURN DOWN £1 MILLION: GET JUDGMENT FOR £2:  THAT IS HARDLY LIKELY TO BE GOOD BUSINESS

Marathon Asset Management LLP -v- Seddon [2017] EWHC 300 (Comm) The claimant sought £15 million in damages for misuse of confidential information. It turned down a Part 36 offer of £1 million. It received £2 in nominal damages at trial.

“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.”