Proving things 74: WHEN YOUR EVIDENCE IS FAR FROM FABULOUS AND COMES WITH A “HEALTH WARNING”: APPLICANT’S CASE PUT BACK IN THE BOX
There is an interesting discussion of the evidence in the Upper Tribunal decision in Fabulous Collections Ltd v Smith (Valuation Officer), Re: 3 Poplar Arcade [2017] UKUT 452. A central part of an applicant’s case essentially disappeared on the morning of…
PROVING THINGS 73: FORESEEABILITY: NOT A TEST SET IN STONE BUT A MATTER OF COMMONSENSE
Foreseeability of damages is one of those topics that takes up a lot of space in text books but is rarely an issue in practice. The question of foreseeability of damages did, however, form a part of the judgment we…
PROVING THINGS 71: NO EVIDENCE AT ALL: NO DAMAGES AT ALL
In Khan v Stockton-On-Tees Borough Council [2017] UKUT 432 (LC) we see another examples of a total failure to prove damages. I include it as another example of a party attending a hearing with no evidence at all to prove a…
COSTS AFTER LATE ACCEPTANCE OF A DEFENDANT’S PART 36 OFFER: CLAIM £21.5 MILLION, ACCEPT £125,000: THE IMPORTANCE OF CLEAR VISION ON DAMAGES FROM THE OUTSET
In Optical Express Ltd & Ors v Associated Newspapers Ltd [2017] EWHC 2707 (QB) Mr Justice Warby considered arguments in relation to costs after late acceptance of a Part 36 offer. On the facts of that case he ordered that the…
PROVING THINGS 69: SOLICITORS EVIDENCE OF (THEIR OWN) LOSS “WHOLLY INADEQUATE”: IMPORTANT POINTS ABOUT DELAY TOO
This blog often reports on cases where a party fails to appreciate the scope and depth of evidence needed to prove a claim for damages. This issue arose in the judgment today in Hersi & Co Solicitors, R (On the Application…
DEFENDANT IN CASE WITH PROTECTED PARTY ENTITLED TO RESILE FROM “COMPROMISE”: REQUIREMENT FOR COURT APPROVAL NOT A BREACH OF ECHR RIGHTS
In Revill v Damiani [2017] EWHC 2630 (QB) Mr Justice Dingemans held that the rule that required a protected party to obtain a court order to approve a proposed settlement remained good law. It did not breach the claimant’s human rights….
PROVING THINGS 68: CLAIM £4,177,782 RECEIVE £46,815: LEASE SAID SOONEST MENDED
If you are looking for a graphic example of a failure to prove damages you may well find it in the decision of Martin Rodgers QC in the Upper Tribunal (Lands) Chamber today in Bishop v Transport for London [2017] UKUT…
DISPUTE BETWEEN SOLICITORS: PERMISSION TO AMEND REFUSED AS IT WAS A COLLATERAL ATTACK ON AN EARLIER DECISION: CONCESSION MADE BY MISTAKE CANNOT BE WITHDRAWN
In Mark Lewis Law Ltd & Anor v Taylor Hampton Solicitors Ltd & Anor [2017] EWHC 2359 (QB) Mrs Justice Whipple DBE refused an application by the defendant solicitors to amend its counterclaim shortly before trial. It is a case that…
PROVISIONAL DAMAGES NOT AWARDED FOR RISK OF DETERIORATION IN PSYCHOLOGICAL CONDITION
In XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB) Sir Robert Nelson considered the question of whether provisional damages should be awarded in relation to a possible deterioration in a claimant’s psychological condition. The fact that the deterioration was…
PROVING THINGS 65: : ASSUMPTIONS ARE NOT EVIDENCE: (IF THE COURT OF APPEAL HAVE TO ASK FOR THE MATTER TO BE MADE SIMPLE YOU ARE IN SERIOUS TROUBLE)
The case of Ted Baker Plc & Anor v Axa Insurance UK Plc & Ors [2017] EWCA Civ 4097 could serve as a parable of modern litigation. The claimant won the first trial on this matter, establishing the defendant insurers were…
MIB CLAIM IS SUBJECT TO QOCS: COURT OF APPEAL OVERTURN HOWE
“For the purposes of CPR Part 44.13, which describes the claims eligible for Qualified One-Way Costs Shifting (“QOCS”), what is a claim for damages for personal injury? As Stewart J said it is a simple question but does not yield…
PROVING THINGS 64 : ABSENCE OF STRONG AND STABLE EVIDENCE LEADS TO DAMAGES AWARD OF £2.00
There are several reasons litigators should read the judgment of HHJ Paul Matthews (sitting as a High Court Judge) in Jones -v- Oven [2017] EWHC 1647 (Ch). However this is another case where a claim for damages failed because the…
THE EXISTENCE OF PART 36 OFFERS MEANT THAT COSTS WERE RESERVED TO THE END OF THE CASE
In Interactive Technology Corporation Limited -v- Ferster [2017] EWGC 1510 (Ch) Mr Justice Morgan held that the existence of Part 36 offers by the defendants meant that the issue of costs after a preliminary hearing had to be reserved to…
PROVING THINGS 62: “TOTALLY UNSATISFACTORY” EVIDENCE AT TRIAL FAILS TO PROVE SPECIAL DAMAGES
I wrote about the judgment in Stewart & Chergui -v- The Commissioner of Police for the Metropolis [2017] EWHC 921 (QB), yesterday. There is no harm in repeating one element of that post in this series. I am repeating it because…
COSTS AT THE END OF THE CASE – WHO IS THE REAL WINNER? (AND MORE ABOUT FAILING TO PROVE DAMAGES)
It is uncertain how much a three week jury trial in the High Court will cost. It is certain that it costs a great deal more than the awards of £5,400 and £5,700 Mrs Justice McGowan awarded to the claimants…
DAMAGES, COSTS AND MEDIATION: COURT OF APPEAL CONSIDERS THE BOUNDARIES
In the judgment today Gore -v- Naheed [2017] EWCA 369 the Court of Appeal considered the issue of damages being awarded (when they had not been claimed) and where costs should lie when a party – reasonably – declined to…
WHAT CAN A DEFENDANT ARGUE ABOUT DAMAGES WHEN ITS DEFENCE IS STRUCK OUT? NOTHING
What is the position of a defendant whose action has been struck out? This was the question considered by Mr Justice Soole in Michael -v- Phillips [2017] EWHC 1984 (QB). The short answer is the defendant cannot dispute any aspect…
“GOOD DAYS AND BAD DAYS”: THE ROLE OF VIDEO EVIDENCE IN THE ASSESSMENT OF CREDIBILITY AND DAMAGES
In Karapetianas -v- Kent and Sussex Loft Conversions Ltd [2017] EWHC 859 (QB) Mr Jonathan Swift QC considered the appropriate approach to damages when the claimant’s case as to ongoing symptoms was contradicted by video evidence. He found that the…
COURT OF APPEAL OVERTURNS FINDINGS OF FACT & CONSIDERS THE IMPORTANT ROLE OF THE SINGLE JOINT EXPERT
We have already looked at the decision in Perry -v- Raleys Solicitors [2017] EWCA Civ 314 in the context of the award of interest. The decision also contains important observations about evidence and the way in which the courts approach…
INTEREST ON DAMAGES AT 8% (AND THE DEFENDANT’S CONDUCT MATTERS): COURT OF APPEAL DECISION CONSIDERED
In Perry -v- Raleys Solicitors [2017] EWCA Civ 314 the Court of Appeal decided that the appropriate rate for interest on damages was 8% from the date of breach. It is not often that questions of interest on damages are…
INTEREST ON AWARD NOT AUTOMATIC: A DECISION WHERE NO INTEREST WAS AWARDED
The question of when, and whether, interest should be awarded is one of these issues in litigation that receives little coverage. In Pinfold -v- Ansell [2017] EWHC 889 (Ch) HHJ David Cooke decided not to award interest at all. It…
LIMITING CLAIM TO £10,000 DID NOT PREVENT COURT AWARDING £140,000: CPR 16.3(7) IN USE
In the judgment today in Harrath -v- Stand for Peace Ltd [2017] EWHC 653 (QB) Sir David Eady awarded £140,000 in a case where the claim form limited the claim to £10,000. This is an interesting development in an environment where…
INTEREST ON DAMAGES AFTER FAILING TO BEAT A CLAIMANT’S PART 36 OFFER: THE AIM IS TO ENCOURAGE GOOD PRACTICE AND NOT SIMPLY TO COMPENSATE
In Ovm Petrom SA -v- Glencore International SA [2017] EWCA Civ 195 the Court of Appeal overturned a decision not to award 10% interest on damages in a case where a defendant failed to beat a claimant’s Part 36 offer….
PROVING THINGS 59: TO GET SPECIAL DAMAGES YOU HAVE TO PLEAD THEM AND PROVE THEM (EVEN IN DEFAMATION CASES)
In Lisle-Mainwaring -v- Associated Newspapers Ltd [2017] EWHC 543 (QB) Judge Parkes QC (sitting as a Deputy Judge of the High Court) declined to award the claimant special damages for financial outlay on the grounds that they were never properly…
PROVING THINGS 58 : FAILURE TO PROVE CAUSATION LEADS TO AWARD OF NOMINAL DAMAGES
For the third time in recent weeks I write about a case where a claimant has spent much time, energy (and no doubt money) in bringing an action but only recovered nominal damages. In Plantation Holdings (FZ) LLC -v- Dubai…
PROVING THINGS 57: LEASE SAID SOONEST MENDED: CLAIM FOR SUBSTANTIAL DAMAGES FAILS (AND GUESS THE REASON)
This series often looks at cases that have floundered at trial – usually because of the absence of basic evidence to prove a litigant’s case. This can be seen again in the judgment of Mr Stephen Furst QC in Car…
TWITTER, LIBEL AND EVIDENCE: THE KATIE HOPKINS JUDGMENT
The judgment of Mr Justice Warby in Monroe -v- Hopkins [2017] EWHC 433 (QB) has already attracted a lot of attention. Here I want to look at the issues relating to the evidence. The case is one of the…
PROVING THINGS 55: I’LL SAY IT AGAIN: NO EVIDENCE – NO DAMAGES
The judgment of Mrs Justice Jefford in Kingsgate Development Projects Lt -v- Jordan [2017]EWHC 343 (TCC) is (yet) another example of a claimant asserting damages but there being no evidence to prove them. The claimant ended up with a judgment…
COMPOUND INTEREST OR SIMPLE INTEREST? COUNTING THE COPPERS: CLAIMANT’S ARGUMENT MISSES THE NET
In Ipswich Town Football Club Company Limited -v- The Chief Constable of Suffolk Constabulary [2017] EWHC 375 (QB) Mr Justice Green considered the question of whether a claimant was entitled to compound interest or simple interest. The judge gave that particular…
CHANGES TO THE DISCOUNT RATE: WITHDRAWING PART 36 OFFERS: IMPORTANT FOR CLAIMANTS AND DEFENDANTS
I wrote yesterday of the practical steps that need to be taken by both parties as a result of the changes to the discount rate (that post is on the Zenith PI Blog and is available here). One point that…
PREVENTING DEFENDANT FROM DEFENDING DAMAGES IS AN APPROPRIATE MEANS OF ENFORCING PEREMPTORY ORDERS: COURT OF APPEAL DECISION
Workman -v- Forrester [2017] EWCA Civ 73 is an important example of the courts using peremptory orders in an attempt to secure compliance. The Court of Appeal upheld a decision to make a peremptory order that allowed the claimants to…
PROVING THINGS 54: GETTING £2 IN DAMAGES AFTER CLAIMING £15 MILLION: A MARATHON EFFORT WITH NO JACKPOT
The judgment of Mr Justice Leggatt in Marathon Asset Management LLP -v- Seddon [2017] EWHC 300 (Comm) has already attracted some publicity. It involved an award for £2 in nominal damages after the claimants had sought £15 million. It is…
REFORMS TO SOFT TISSUE PROCESS: LINKS TO OFFICIAL PAPERS AND COMMENTARY (FROM CLAIMANTS AND INSURERS)
The proposed reforms were set out in detail for the first time today. Here are links to the relevant documents and some of the commentary: Official publications The 49 page paper from the government is here The summary is here …
PROVING THINGS 53: BECAUSE A SOLICITOR WAS DISHONEST SOME OF THE TIME IT DOESN’T MEAN THEY WERE DISHONEST ALL OF THE TIME
The case of Pemberton Greenish LLP -v- Henry [2017] EWHC 246 (QB) provides an interesting assessment of witness evidence and demonstrates the difficulty in proving dishonesty. Mr Justice Jeremy Baker held that the fact that a solicitor was negligent, breached…
BABIES, BUNDLES, HUMAN RIGHTS, PROPORTIONALITY, CONDUCT AND COSTS:ALL IN ONE JUDGMENT
The judgment of Mr Justice Cobb in AZ -v- Kirklees Council [2017] EWFC 11 contains much of interest to the legal profession generally. It shows the danger of failing to comply with court directions; make or respond to appropriate offers…
PROVING THINGS 52: SOLICITOR’S NEGLIGENCE ACTION FAILS ON ALL COUNTS: NO NEGLIGENCE AND NO LOSS
The judgment of HHH David Cooke today in Anderson Properties Ltd -v- Blyth Liggins [2017] EWHC 244 (Ch) is another example of a solicitor’s negligence case failing because of the absence of basic evidence in relation to liability, causation and damages….
PROVING THINGS 51: NO EVIDENCE OF LOSS – NO DAMAGES: A LESSON TO SHARE
For the second time today we are looking at the judgment of Mrs Justice Proudman in Abbott -v- RCI Europe [2016] EWHC 2602 (Ch). This time in relation to the failure of the claimants to quantify or prove they had…
PROVING THINGS 49: IT IS DIFFICULT TO PROVE DAMAGES WHEN THE OPINION EVIDENCE IN YOUR WITNESS STATEMENT HAS BEEN STRUCK OUT
The dangers of giving opinion evidence in witness statements are highlighted in the judgment today of Mr Justice Coulson in MacInnes -v- Gross [2017] EWHC 46 (QB). The opinion parts of the claimant’s witness statements were struck out. There was…
INDEMNITY COSTS ORDER AGAINST DEFENDANT UPHELD BY COURT OF APPEAL: OFFERS AND CONDUCT: MANNA II
The second post on the Court of Appeal decision in Manna -v- Central Manchester Hospitals NHS Trust [2017] EWCA Civ 12 relates to the Court’s upholding of the trial judge’s award of indemnity costs. “A judge should in my view be…
APPEALS, COUNTER-SCHEDULES AND A RESERVE POSITION: NOT MANNA FOR THE DEFENDANTS
We will be looking at the Court of Appeal decision in Manna -v- Central Manchester Hospitals NHS Trust [2017] EWCA Civ 12 twice today. Here I want to look at the difficulties the defendant had in arguing a point in…
DELAY AND NON-COMPLIANCE: ACTION STRUCK OUT: A "GAME CHANGER"
The judgment of Master Matthew in Phelps -v- Button [2016] EWHC 3185 (Ch) emphasises the dangers of delay and non compliance. “…I will observe that the Court ethos has changed enormously since the days of Lord Denning and the two…
TOO LONG OR TOO SHORT: SCHEDULES and COUNTER-SCHEDULES: THE "CINDERELLAS" OF THE LITIGATION PROCESS
One important, but often overlooked, element of procedure and legal drafting is the preparation of the schedule of damages and the counter-schedule. The rules relating to these documents are sparse. However these are important documents, often impacting upon the credibility…
PROVING THINGS 45: IF YOU CAN'T PROVE LOSS THE DEFENDANT IS GOING TO GET SUMMARY JUDGMENT
This series (and this blog) have looked at several cases where a party has asserted a loss but not been able to prove it. There are a large number of cases where a party fails to put the basic information…
PROVING THINGS 41: PROVING DAMAGES – YOU ARE NOT GETTING A SECOND BITE OF THE CHERRY
There was one part of the argument in Francis -v- Knapper [2016] EWHC 3093 (QB) that justifies closer examination. That is the claimant’s suggestion that the question of damages be put off. A party struggling to prove damages at trial is…
PROVING THINGS 40: NO EVIDENCE – NO LOSS: LITIGATION IS NOT A WALK IN THE PARK
A constant motif in this series has been the ability of litigants to arrive at trial and not be able to prove central parts of their case – including damages. This is exemplified in the judgment of Mr Justice Baker…
PROVING THINGS 39: YOU CAN SPEND £10 MILLION IN COSTS AND STILL NOT PROVE YOUR CASE: DAMAGES CLAIM WAS A "NOTIONAL DESKTOP EXERCISE"
It is unusual to look at the substantive judgment in a case after examining the decision on costs. We have already looked at the cost judgment in Amey LG Limited -v- Cumbria County Council [2016] EWHC 2496. However the substantive…
PROVING THINGS 33: CAUSATION AND THE BURDEN OF PROOF IN CLAIMS AGAINST SOLICITORS
We have looked before at the decision in The Connaught Income Fund, Series 1 -v- Hewetts Solicitors [2016] EWHC 2286 (Ch). The previous post was in connection with witness evidence. However the judgment on the burden of proof is significant in terms…
WHAT CAN A DEFENDANT ARGUE ABOUT DAMAGES AFTER A DEFAULT JUDGMENT 3: A NUANCED APPROACH
We have looked several times before at the question of what a defendant can argue in relation to damages after judgment has been entered*. The recent decision of Master Matthews in Merito Financial Services Limited -v- David Yelloly [2016] EWHC…
ATTRITIONAL WARFARE; UNMERITORIOUS POINTS AND UNFOUNDED ALLEGATIONS OF BAD FAITH: SO MUCH (AND MORE) IN ONE JUDGMENT
The judgment today of Mr Justice Edis in Hayden -v- Maidstone & Tunbridge Wells NHS Trust makes for uncomfortable reading on the issue of the general attitude of the lawyers towards the conduct of the litigation. In addition to…
THE ARROYO CASE WAS A BIG & COMPLEX ACTION: THE PROBLEMS WERE SIMPLE (AND COMMON) 1: UNCHECKED SCHEDULES OF DAMAGES
The judgment of Mr Justice Stuart-Smith in Arroyo -v-Equion Energia Limited [2016] EWHC 1699 TCC is 1885 paragraphs long. The trial lasted from the 15th October 2014 to the 5th March 2015, that is 62 court days. The judgment actually…
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