CIVIL LITIGATION REVIEW OF 2018 2: CASE OF THE YEAR: HOW WINNING ON A PRELIMINARY ISSUE CAN LEAD YOU UP THE GARDEN PATH
There are no objective criteria for selecting case of the year. This year I have chosen Burges & Anor v Lejonvarn [2018] EWHC 3166 (TCC). This case is a classic illustration of a basic failure to prove things. It is of central…
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…
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
The final paragraphs of the judgment in Anderson & Ors v Sense Network Ltd [2018] EWHC 2834 shows that some of the claimants in that case were unable to establish their losses. Indeed two of the claimants may have suffered no…
SUCCESSFUL PRE-ACTION DISCLOSURE APPLICATION BY DEFENDANTS: CLAIMANTS HAD TO GIVE INFORMATION AS TO IMPECUNIOSITY
In EUI Ltd v Charles & Ors [2018] EW Misc B7 (CC) HHJ Robert Harrison made an order that claimants give pre-action disclosure of documents relevant to the issue of impecuniosity. The practical consequences of this decision could be enormous. Given…
A POSSIBLE SOLUTION WHEN A DEFENDANT IN A PI CASE WILL NOT PAY: LOOK AT YOUR OWN CLIENT’S HOME INSURANCE POLICY
I am repeating something that has appeared in this blog twice already. However it is a topic that that has featured in recent legal discussions on Twitter. That is the use of your own client’s home insurance policy to recover damages…
WHY SOLICITORS’ ATTENDANCE NOTES CAN BE IMPORTANT: CONSTRUING A CONSENT ORDER: DICTIONARIES AND REASONABLENESS
In Hague v British Telcommunications Plc (Immunotherapy : Reasonableness of Treatment : Private Dictionary Principle) [2018] EWHC 2227 (QB) Master Thornett had to construe the terms of a consent order. It is a case that emphasises the importance of attendance notes. …
PROVING THINGS 125: THE IMPORTANCE OF KEEPING YOUR OWN EXPERT IN THE LOOP: ALSO THE IMPORTANCE OF READING AN EXPERT’S NOTES
In Swift v Carpenter [2018] EWHC 2060 (QB) Mrs Justice Lambert gave a lengthy judgment in a high value personal injury case. One interesting aspect of that case is the problems caused by the defendant’s expert evidence on care. An additional…
PROVING THINGS 123: THE PERSONAL INJURY CLAIMANT WHO COULD NOT SAY WHETHER OR NOT HE HAD BEEN INJURED
We looked at the case of Kavak v FMC – HHJ Pearce Manchester CC 24.04.18) in an earlier post, primarily in the context of re-allocation. However that case provides a clear illustration of a failure to prove a basic element of…
CHANGING TRACK AFTER TRIAL: CLAIM RE-ALLOCATED FROM FAST TRACK TO SMALL CLAIMS TRACK: CLAIMANT CONFINED TO SMALL CLAIM TRACK COSTS
I am grateful to Michael Cordeux from Plexus Law for sending me a copy of the decision of His Honour JudgePearce, sitting in the Manchester County Court, on the 9th April 2018. It is an example of how a case…
APPEAL ON FINDING OF FACT ALLOWED: ANOTHER SKIRMISH IN THE CREDIT HIRE WAR
I am grateful to Lee Kipling from Winns, solicitors for sending me a copy of the decision of HH Judge Gosnell in Morris -v- MCE Insurance Company Ltd.( Morris v MCE Insurance (23.07.18) (Jud) (2)). A case where the judge allowed…
PROVING THINGS 122: THE CLAIMANT MAY NOT BE DISHONEST BUT SHE IS NOT ACCURATE: A HIGH IQ IS NO GUARANTEE OF COMMONSENSE
Many cases rest on the credibility of witnesses. A detailed examination can be found in the judgment of HH Judge Saggerson (sitting as a High Court Judge) in Hibberd-Little v Carlton [2018] EWHC 1787 (QB). There are issues here in relation…
RESPONDENT CAN STILL RAISE ISSUES ON DAMAGES AFTER LIABILITY IS DETERMINED: IMPORTANT POINT ON PROTECTING AN APPLICANT AS TO COSTS
The Court of Appeal decision in Office Equipment Systems Ltd v Hughes [2018] EWCA Civ 1842 is in relation to procedure in the Employment Tribunal. However there are two points in the judgment that are of general importance to civil practitioners. …
PROVING THINGS 121: FAILING TO PROVE LOSS OF EARNINGS, AND THE APPROPRIATE APPROACH WHERE FUTURE TREATMENT IS UNCERTAIN
Yesterday I looked at Welsh v Walsall Healthcare NHS Trust [2018] EWHC 1917 (QB) and the comments from the judge in relation to the joint statement of experts. The case also contains interesting observations in relation to proving damages. These are observations on matters…
PROVING THINGS 120: PROVING DAMAGES: THE DANGERS OF NOT HAVING A CREDIBLE “FALL BACK” POSITION
In Moore & Anor v National Westminster Bank [2018] EWHC 1805 (TCC) Mr Justice Birss dismissed an appeal by the defendant against an award of £115,000 in damages. It is a case about the appropriate assessment of damages when the defendant…
A FINDING OF FUNDAMENTAL DISHONESTY: CLAIM DISMISSED – SOCIAL MEDIA AND FACEBOOK PLAY A PART…
In Pinkus v Direct Line [2018] EWHC 1671 (QB) HHJ Coe (sitting as a judge of the High Court) found a claimant to be fundamentally dishonest. It is another example of how the courts can look at social media to come…
ERRORS BY YOUR OWN EXPERT ARE NOT GOING TO LEAD TO A WIN ON APPEAL: A KNOTTY SITUATION
In Network Rail Infrastructure Ltd v Williams & Anor [2018] EWCA Civ 1514 the Court of Appeal considered a “rather obscure” argument that an error by the appellant’s expert should lead to damages being reconsidered. “It would be quite wrong…
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…
DAMAGES CLAIMED BUT NOT PLEADED: REALLY STRANGE WITNESS STATEMENTS; PARTISAN EXPERTS: THE ICI CASE IS BACK IN COURT
If you are ever looking for an example of matters going awry in litigation then read the judgment of Mr Justice Fraser in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC). All the usual problematic issues…
PROVING THINGS 114: A WITNESS OF FACT CANNOT GIVE EXPERT EVIDENCE: NO ADMISSIBLE EVIDENCE OF ANY LOSS
There are several elements worth looking at in the judgment in Wessely & Anor (Liquidators of Laishley Ltd) v White [2018] EWHC 1499 (Ch). However it is a prime example of a simple failure to prove things. If the applicants had…
INSURANCE COMPANY ENTITLED TO EXEMPLARY DAMAGES AGAINST FRAUDSTERS: COURT OF APPEAL DECISION TODAY
In Axa Insurance UK Plc v Financial Claims Solutions Ltd & Ors [2018] EWCA Civ 1330 the Court of Appeal held that an insurance company was entitled to exemplary damages against parties who had attempted to defraud it. “the present case…
PROVING THINGS 110: ASSESSING DAMAGES: “BEGIN WITH FIRST PRINCIPLES”: PROVING AND ASSESSING LOSS IN A CLAIM FOR PROFESSIONAL NEGLIGENCE
In Edwards v Hugh James Ford Simey (a firm) [2018] EWCA Civ 1299 the Court of Appeal overturned a finding that the claimant had not established causation for damages in a professional negligence action. When assessing damages the court should begin…
“NOTHING SHORT OF A RECOGNISED PSYCHIATRIC INJURY CAN AMOUNT TO A PERSONAL INJURY”: SECTION 33 CANNOT APPLY WHERE THE CLAIMANTS SUFFERED “FEAR”
The judgment of Mr Justice Stewart in Kimathi & Ors v The Foreign and Commonwealth Office [2018] EWHC 1305 (QB) (24 May 2018) considers the question of what is an “injury” for the purpose of Section 33 of the Limitation Act…
PROVING THINGS 1O2: FAILING TO PROVE CHANCE OF RECONCILIATION
A claimant in a fatal accident claim does not have to prove an entitlement to a dependency claim on the balance of probabilities. The court can, in appropriate cases, look at the case on the basis of loss of chance,…
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…
PROVING THINGS 99: THE ROLE OF THE JOINTLY INSTRUCTED EXPERTS: TRIAL JUDGE COULD PREFER VIEWS OF OTHER EXPERT
The opinion of a single joint expert is not binding on the court. This is clear from the judgment of Mr Justice Turner today in HJ v Burton Hospitals NHS Foundation Trust [2018] EWHC 1227 (QB) “The opinion of a single…
PROVING THINGS 95: OH… WHY A COMBATIVE EXPERT WITNESS NEVER HELPS: LEAVE ADVOCACY TO THE ADVOCATES…
Crown Office Chambers have a short post on their website that deals with the judgment in Ruffell -v- Lovatt HHJ Hughes 4 April 2018. The post provides a link to the judgment itself. The judgment is another example of a…
SCHEDULES OF DAMAGES: WEBINAR 4th JULY 2018: YOU WON’T HAVE FAR TO TRAVEL
Following on from the recent post on drafting schedules and Wright v Satellite Information Services Ltd [2018] EWHC 812 (QB) I am presenting a webinar on schedules of damages on the 4th July 2018, looking at these issues in more detail,…
PROVING THINGS 92: WHERE THE CLAIM FOR DAMAGES WAS LARGELY “WISHFUL THINKING”: £1 MILLION CLAIM REDUCED TO £25,104 (OH & THROW IN A ERRANT EXPERT AS WELL)
The judgment of John Martin QC (sitting as a High Court judge) in London College of Business Ltd v Tareem Ltd & Anor [2018] EWHC 437 (Ch) is a prime example of a failure to prove damages. The claim was…
PROVING THINGS 89: AN APPROACH THAT IS JUST DANGEROUS: ABDICATION OF THE LAWYER’S ROLE TO AN EXPERT
This is the third post today on Wright v Satellite Information Services Ltd [2018] EWHC 812 (QB). The case demonstrates an approach to a claim for damages that is simply dangerous: asserting a claim for damages where there is no adequate evidence…
CIVIL PROCEDURE BACK TO BASICS 5: SCHEDULES AND COUNTER-SCHEDULES: NOT A NUMBER-CRUNCHING EXERCISE
If there is anything that suffers from being taken for granted it is the basic schedule and counter-schedule. This is demonstrated in the judgment available today in Wright v Satellite Information Services Ltd [2018] EWHC 812 (QB) Mrs Justice Yip. The appeal…
DEFENDANT FAILS TO OBTAIN FINDING OF FUNDAMENTAL DISHONESTY: DEFENDANT’S APPEAL DISMISSED: A BADLY THOUGHT OUT AND POORLY DRAFTED SCHEDULE
In Wright v Satellite Information Services Ltd [2018] EWHC 812 (QB) Mrs Justice Yip refused the defendant’s appeal in a case where it was argued that the trial judge should have made a finding of fundamental dishonesty. The claimant had not…
PROVING THINGS 86: CLAIMANTS PROVE THE FACTS BUT FAIL TO PROVE CAUSATION: A SALUTARY TALE
The decision of His Honour Judge Simpkiss in O’Neill -v- Bull & Bull* (Canterbury County Court 5th February 2018) is an almost classical example of the need to prove things. It also provides a warning to non-contentious lawyers on the…
PART 36 AND INTERIM PAYMENTS: SOMETHING TO BE WARY ABOUT : COURT OF APPEAL DECISION
The case of Gamal v Synergy Lifestyle Ltd [2018] EWCA Civ 210 is one that needs to be read with great care. A defendant who made a voluntary interim payment after making a Part 36 offer. The effect of this was…
PART 36: THE UNCERTAIN PROGNOSIS AND THE CLAIMANT’S CONUNDRUM: FIVE POINTS TO THINK ABOUT
The earlier post on the Court of Appeal decision in Briggs -v- CEF Holdings Ltd [2017] EWCA 2363 (Civ) gives rise to a conundrum that claimants (and sometimes defendants) have to address. How do you advise a client when a Part 36…
PROVING THINGS: IF YOU LIKE THE BLOGS – THEN WATCH THE MOVIE…
The Webinar I did last week called “Proving things: if you don’t prove it, then you don’t get it” is now available for purchase online. TOPICS COVERED Topics covered include: “If you don’t prove it you don’t get it” Witness…
ACCEPT A PART 36 OFFER LATE AND PAY THE CONSEQUENCES: LITIGATION CAN BE A HARSH WORLD
I have been waiting for a while to see the transcript of the Court of Appeal decision in Briggs -v- CEF Holdings Ltd [2017] EWCA 2363 (Civ), some people have even written enquiring whether I have covered it. It is a…
DENTON APPLIED TO LATE APPEAL: SUBMITTING SUBMISSIONS AFTER A HEARING AND THE NEED FOR CAUTION WHEN SEEKING DAMAGES UNDER THE HUMAN RIGHTS ACT
In Fayad, R (On the Application Of) v The Secretary of State for the Home Department [2018] EWCA Civ 54 the Court of Appeal applied the Denton principles to a late appeal. Permission to appeal was refused. Mr Justice Singh had…
PROVING THINGS 85: AN INABILITY TO PROVE EVEN A SMALL SUM MEANS IT WILL NOT BE AWARDED
Many of the issues that have been looked at in the Proving Things series have been in relation to failures to prove substantial issues, or substantial sums. However the need to prove things is a universal requirement. I want to look…
PROVING THINGS 84: THE NEED TO PROVE A LOSS IS A PRESSING ONE: THAT OLD FASHIONED NEED TO PROVE DAMAGES: BUSINESS INTERRUPTION CLAIM REJECTED
In Contact (Print And Packaging) Ltd v Travelers Insurance Co Ltd [2018] EWHC 83 (TCC) His Honour Judge Stephen Davies (sitting as a High Court Judge) considered (and rejected) a claimant’s claim for damages for interruption to its business. It is…
FUNDAMENTAL DISHONESTY ESTABLISHED ON APPEAL: WHEN A CLAIMANT DIGS A BIG HOLE FOR THEMSELVES THE COURT SHOULD NOT STRUGGLE TO EXTRACT THEM
In London Organising Committee of the Olympic And Paralympic Games (LOCOG) v Sinfield [2018] EWHC 51 (QB) Mr Justice Julian Knowles overturned a decision whereby a claimant was allowed damages. The claimant had been fundamentally dishonest in making a claim for…
SETTING ASIDE A DEFAULT JUDGMENT DURING CLOSING SUBMISSIONS AT TRIAL: A “HIGHLY UNUSUAL CASE”
I am grateful to barrister Robert Smith for sending me a copy of the judgment of His Honour Judge Gargan in the case of Jackson -v- Durham County Council & ors (20th December 2017). The judgment dealt with the issue…
AN UNAPOLOGETIC REPEAT: WHY YOU NEED TO CHECK YOUR OWN CLIENT’S INSURANCE BEFORE GIVING UP ON A PERSONAL INJURY CASE
Every year or so I repeat one point about insurance. It has caused a stir every time I have written about it. As the numbers of people who read this blog increase, and because people can forget things. I am…
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…
PROVING THINGS 82: ITS NO GOOD FISHING – THE JUDGE WON’T BITE
It is surprising how often litigants get to trial and find that they have not got even the most basic evidence to prove their claim for damages. This happened to the claimant today in One Fish Company Ltd v Iceland Foods…
INTERIM PAYMENTS: CHANGE IN THE DISCOUNT RATE AND EELES: THE ISSUES ADDRESSED HEAD ON: INTERIM PAYMENT OF £2.4 MILLION GRANTED
The problems caused to personal injury claimants by the change in the discount rate were addressed directly by His Honour Judge Curran (sitting as a High Court Judge) in Porter v Barts Health NHS Trust [2017] EWHC 3205 (QB). The court…
PROVING THINGS 81: PROVING MITIGATION OF LOSS – AGAIN: FAILURE TO FIND WORK WAS NOT A FAILURE TO MITIGATE
We have looked at issues relating to proving mitigation of loss before*. The legal burden in establishing a failure to mitigate loss lies with the party asserting a failure to mitigate. This was made clear in the judgment of Mrs…
PROVING THINGS 80: PROVING A SUBROGATED CLAIM: HEALTH INSURANCE COSTS NOT RECOVERED IN FULL
It is not uncommon for an insurer to seek to add a claim for outlay to a claim. This is particularly the case in relation to health insurers who seek to recover outlay in a claim for damages for personal…
CLAIMANT BEATS HIS OWN PART 36 OFFER: INTERESTS, COSTS AND HOW THE ADDITIONAL 10% IS CALCULATED
In Mohammed v The Home Office [2017] EWHC 3051 (QB) Mr Edward Peperall QC (sitting as a Deputy High Court Judge) considered the appropriate award for interest and additional damages when a claimant had beaten their own Part 36 offer. …
SIXTY YEARS OF MUNKMAN ON DAMAGES: A PICTORIAL HISTORY
It is now sixty years since the first edition of Munkman on Damages was published, it is now in its 13th edition. Looking at how it has changed over the years says a lot about how the law has developed…
PROVING THINGS 76: A RECAP – I DIDN’T EXPECT TO GET THIS FAR…
Today saw the 75th in the series “proving things”. I never anticipated that the series would run so long, I initially planned around 10 posts. Now we have reached 75 (and with no plans to stop) this is an appropriate…
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