PROVING THINGS 200: ALL THE SERIES IN ONE PLACE: THE (VERY) EXPENSIVE COSTS OF FAILING TO THINK FULLY ABOUT EVIDENCE
There are now 200 posts in the “Proving Things” Series. These centre, usually, on a failure to establish matters at trial. Sometimes the failures are dramatic. In Marathon Asset Management LLP -v- Seddon [2017] EWHC 300 (Comm) i the claimants had sought £15 million, they received £2, having turned down a Part 36 offer of £1,5 million along the way. The claimant in Burges & Anor v Lejonvarn [2018] EWHC 3166 (TCC) the claimants succeeded in the Court of Appeal in establishing a duty of care but failed totally at trial, with the judge finding that, despite claiming £360,000, they had lost nothing. The same claimants came to grief when the matter went to the Court of Appeal a second time. The defendant’s costs budget had been £724,265.63 (excluding vat and budget preparation costs), the Court of Appeal held that a large portion of the defendant’s costs should be assessed on the indemnity basis. These cases are two of the many that illustrate the costs of not realising how to “prove things” and failing to carry out any critical analysis of your own case as to damages.
THE PROVING THINGS SERIES TO DATE
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 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 proven
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 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 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 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 88: Matters you have to prove if you want an injunction: the impact of a six month delay in applying
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 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: A tale of two judgments
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 the 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 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: It’s no use just waiving accountant’s reports around
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 fact cannot give expert evidence: No admissible evidence of any loss
Proving things 115: When handwritten notes of meetings vary from the typed version (and there is more…)
Proving things 116: Honest witnesses can be wrong: “Insignificant event” becomes “magnified in the claimant’s mind”
Proving things 117: A dishonest police officer is “malicious”: Proving a case for malicious prosecution and misfeasance in public office
Proving things 118: It seems that even the Lord Chancellor doesn’t know how to prove things: “That final sentence was both inaccurate and misleading”
Proving things 119: Witnesses & experts: “In a case of fairly remarkable reports, this was the most extraordinary”
Proving things 120: Proving damages: The dangers of not having a credible “fall back” position
Proving things 121: Failing to prove loss of earnings, and the appropriate approach where future treatment is uncertain
Proving things 122: The claimant may not be dishonest but she is not accurate: A high IQ is no guarantee of commonsense
Proving things 123: The personal injury claimant who could not say whether or not he had been injured
Proving things 124: “Put bluntly: that evidence is wholly inadequate”: Defendant’s evidence on an injunction application
Proving things 125: The importance of keeping your own expert in the loop: Also the importance of reading an expert’s notes
Proving things 126: Failure to prove dishonesty
Proving things 127: Written contract – what written contract? Application for an injunction fails when claimant cannot prove a contract was ever signed
Proving things 128: Claimant’s evidence not full, clear, frank or unequivocal in response to application for security for costs
Proving things 129: Impatient patient did not break the chain of causation: Supreme Court decision today
Proving things 130: By the time of trial you should really know what you have lost: Some of these claimants may have suffered no loss at all
Proving things 131: In the absence of evidence the court should not draw inferences in solicitor’s costs case
Proving things 132: Bundles, burdens of proof and go-karts: Claimant manages to cross the winning line on appeal
Proving things 133: Falling off a bed and the pieces of the jigsaw
Proving things 134: Winning a few battles but losing the war: All is not rosy in these claimants’ garden
Proving things 135: What a difference cross-examination can make
Proving things 136: The importance of cross-examination – yet again: Failure to cross-examine respondent leads to findings being set aside
Proving things 137: Proving a defence to a counterclaim: No evidence to prove matters – then judgment is going to be entered against you
Proving things 138: A whopper of an omission: McDonald’s fails to prove trademark rights to “Big Mac”: Adequate evidence was not on the menu
Proving things 139: When the judge has to decide whether its all been a bit of a crush
Proving things 140: Speculative evidence not enough to prove a “loss of chance”
Proving things 141: Credibility was important in claim for damages against solicitors: Supreme Court restores decision of trial judge
Proving things 142: Claimant has to prove size of highway defect: Photographs that were “almost completely useless”
Proving things 143: The courts don’t really appreciate evidence coming from the news rather than the parties: (Ships, I see no ships)
Proving things 144: That temptation to put matters in the skeleton that aren’t established by the evidence: Also – the power of lists
Proving things 145: When experts are of no help at all: It is the facts that won it
Proving things 146: No evidence at all to prove a loss, or that the defendant caused any “loss” (this is becoming a familiar story)
Proving things 147: Claim for not pursuing negligent solicitors leads to nominal damages only: no damages for “loss of chance”
Proving things 148: Fundamental dishonesty proven: no need to wait for assessment of damages
Proving things 149: A judge can find dishonesty on the facts before them even if it is not pleaded
Proving things 150: Claimant fails to establish that the move from legal aid to conditional fee agreement was a reasonable step
Proving things 151: Dependency in a fatal accident act claim: Adult child dependants receive damages for future contributions to weddings and towards their first home
Proving things 152: Claimant, bringing action 50 years after the event, not quite thrown to the wolves, but…
Proving things 153: “You do not win a case on inconsistencies”: When the applicants “pursued a confused and poorly evidenced case for little purpose”
Proving things 154: Close connection in time does not establish causation in a clinical negligence case: Experts straying beyond their area of expertise
Proving things 155: Witness evidence that goes wrong: Hotel proprietor not liable to guest for assault by trespasser
Proving things 156: Medical experts, causation, clinical negligence, absent evidence
Proving things 157: Defects in evidence “so fundamental” that application dismissed
Proving things 158: Now – why wouldn’t banks want to reveal details of the bonuses they paid?
Proving things 159: A formulaic approach to evidence which leads to confirmation bias: The dangers of pro forma evidence gathering
Proving things 160: Delay must be explained: Court can direct that extra evidence be filed
Proving things 161: Documents being deliberately destroyed and experts who were of very limited assistance
Proving things 162: When the government doesn’t have the commons touch
Proving things 163: Proving mitigation of loss: A claimant need not take the risk of starting uncertain litigation against a third party
Proving things 164: The need for a car for private purposes is not self proving and the court will not infer such a need
Proving things 165: Claimant in clinical negligence case proves negligence but fails to establish causation
Proving things 166: Lying in court (& how the judge decides who is…)
Proving things 167: Bundles, experts, absent witness, unpleaded defences and…sewage: All modern litigation is here…
Proving things 168: Proving loss of earnings: Court of Appeal decision: Statements of opinion or belief carry no weight
Proving things 169: When the defendant calls no (lay) evidence and tries to prove its case through the claimant’s witnesses
Proving things 170: You can’t give evidence by way of submissions (honestly, you can’t)
Proving things 171: A tale of two television presenters (and of a case where there was no evidence at all on vital issues)
Proving things 172: Speculation by the defendant is not evidence: A clinical negligence case
Proving things 173: Failing to prove any kind of past or future loss of earnings: A blamire award is not a substitute for evidence
Proving things 174: Illegality, the van driver and the MOT certificate: Claimant still entitled to damages
Proving things 175: When the trial judge is asked to consider the quality of cuddly toys in court: CPR 33.6 and its significance
Proving things 176: Relying on memory from events a long time back
Proving things 177: When you are relying on a medical expert on causation who “shoots from the hip” (it doesn’t end well)
Proving things 178: Proving prejudice: The need for specific evidence
Proving things 179: Secretary of State’s “superficial investigation” fails to prove that defendant was a de facto director
Proving things 180: Accepting a lift with a drunken driver, whilst drunk: Defendant fails to establish that failing to wear a seat belt made a difference
Proving things 181: The art gallery, the milkman and the 1992 reglulations…
Proving things 182: Failing to prove a contract was signed and getting damages of £1: Not a great result for a claimant
Proving things 183: Where does the burden of proof lie in a highway maintenance case?
Proving things 184: Proving you can’t a claim will be “stifled” requires a detailed explanation
Proving things 185: Saying “I’m broke” does not prove impecuniosity: “The defendant is entitled to know the case they have to meet”
Proving things 186: When the one witness in the case had little knowledge of how the figures in the schedule had been reached – there is trouble ahead…
Proving things 187: The camera may lie: The importance of dates on photographs
Proving things 188: Proving a warning would have made a difference: Pedestrian hit by cricket ball loses case on appeal
Proving things 189: If you want to prove the depth of something – take a rule (oh, and photographs)
Proving things 190: Proving loss of earnings (1): The importance of the witness statement: The questions you should ask
Proving things 191: Proving loss of earnings (2): A client questionnaire
Proving things 191: Proving loss of earnings (3): Claiming and proving “fringe benefits”
Proving things 192: When a witness gives evidence of matters that took place 50 years ago: How the judge weighs the evidence
Proving things 193: The possibility of the deceased person having increased earnings and “loss of chance” considered in a fatal case
Proving things 194: Proving causation is an essential element of a claim in negligence
Proving things 195: A case where the risk assessment was relevant and causation was established
Proving things 196: Proving that files were (or were not) delivered is more tricky than you might think
Proving things 197: Proving loss of earnings in a pandemic: Actual earnings exceeded potential earnings
Proving things 198: “Not reliable evidence”: Those emails may not be all they seem