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…
PROVING THINGS 24 : DAMAGES AND THE "BUT FOR TEST": WHEN IT GETS REALLY COMPLEX
The judgment of Mr Justice Foskett today in Reaney -v- University Hospital of North Staffordshire NHS Trust [2016] EWHC 1676 (QB) is interesting reading. Not least because the parties could not agree what the Court of Appeal had decided and…
PROVING THINGS 22: DAMAGES, MITIGATION , PART 36 (AND EVEN SOMETHING ABOUT BUNDLES)
The Court of Appeal decision today in Pawar -v- JSD Haulage Ltd [2016] EWCA Civ 551 contains some important lessons in relation to proving damages, mitigation of loss and Part 36 offers. “The fact that a claimant does not mitigate…
PROVING THINGS 18: DAMAGES; CAR HIRE; PROOF AND SUMMARY JUDGMENT
The burden is (usually) on a claimant to prove a loss. There is an interesting discussion on the need to prove “need” in the decision of District Judge Read in Frankland -v- U.K. Insurance Ltd (10th August 2015) which was…
PROVING THINGS 17: HEADS OF DAMAGE THAT WERE "ENTIRELY BOGUS"
The case of Perma-Soil UK Limited -v- Williams & Flintshire County Council [2016] EWHC 1087 (QB) was an unusual one. The claimant (unsuccessfully) brought a claim for damages for misfeasance in public office. However I want to look at the…
UNCERTAINTY AS TO DAMAGES: JUST HOLD ONTO THE MONEY UNTIL FULL TIME
In Gibbs -v- Leeds United Football Club Ltd [2016] EWHC 960 (QB) Mr Justice Langstaff made an order that dealt with the question of uncertainty in relation to the assessment of damages. Rather than speculate on sums to be paid…
PROVING THINGS 16: IF YOU DON'T PROVE IT YOU DON'T GET IT
In Undre & Down to Earth (London) Limited -v- the London Barrow of Harrow [2016] EWHC 931 a claimant failed, totally, to prove any loss. The judge found that there was a total failure by the claimant to prove…
PROVING THINGS 15: DAMAGES & EVIDENCE: GOING BACK TO COLLEGE
One harsh shock for many litigants occurs when they are asked to prove their damages at trial. We have looked several times when a litigant has come to grief at this stage, largely because there is no evidential support for…
PROVING THINGS 14: PROVING MITIGATION OF LOSS
The previous post in this series looked at the Court of Appeal decision in Bacciottini -v- Gotelee and Goldsmith [2016] EWCA Civ 170 where the court upheld an award of £250 in damages because of issues relating to mitigation of loss….
THE PROTOCOLS: OFFERS AND RAISING NEW POINTS AT THE HEARING
The 4 New Square website has a copy of an interesting judgment of His Honour Judge Freedman in Mulholland -v- Hughes (18th September 2015). “I regard it as inequitable and unfair for a defendant, for the first time, to raise…
PROVING THINGS 13: LOSS, THERE WAS NO LOSS
The case of Bacciottini -v- Gotelee and Goldsmith [2016] EWCA Civ 170 is one that may have you scratching your head. The claimants claimed, at one stage, over £300,000 in damages. The judge awarded £250.00. It is a potent lesson…
PROVING THINGS 9: THE ROLE OF EXPERTS
Here I want to pick up on a few observations of Mr Justice Snowden in Grant -v-Ralls [2016] EWHC 243 (Ch) a case we looked at yesterday. That is the role of the experts. It is dangerous to defer the “proving”…
PROVING THINGS 8: DEFENDANT MUST PROVE THAT FAILURE TO WEAR A SEATBELT MADE A DIFFERENCE
The defendant bears the burden not only of proving contributory negligence but also establishing its causative relevance. The law in Syred -v- Powszecnny Zaklad Ubezpieczen (PZU) SA [2016] EWHC 254 (QB) (Mr Justice Soole) was complex, however one key point…
PROVING THINGS 3: THE COMPLETE ABSENCE OF EVIDENCE MEANS THE COURT WILL NOT SPECULATE
Another example of a failure to prove damages can be found in the decision of His Honour Judge Stephen Davies (sitting as a High Court judge) in Fairhurst Developments Limited -v- Collins [2016] EWHC 199 (TCC). KEY POINTS This is…
PROVING THINGS 2: EVIDENCE TO SUPPORT A CLAIM FOR DAMAGES MUST BE PITCH PERFECT
Another example of the need to prove damages can be seen in the Court of Appeal decision in Gartell & Son (a firm) -v- Yeovil Town Football & Athletic Club Limited [2016] EWCA Civ 62. It is another case that…
EVIDENCE, DAMAGES AND A SOLICITOR'S GOODWILL
The Court of Appeal decision in Karim -v- Wemyss [2016] EWCA Civ 27 has already received some publicity, involving as it does litigation following the sale of a solicitor’s practice. However the decision also shows the dangers of not bringing…
PART 36, THE COMPENSATION RECOVERY UNIT AND COSTS: A SIGNIFICANT COURT OF APPEAL DECISION
In Crooks -v- Hendricks Lovell Limited [2016] EWCA Civ 8 the Court of Appeal considered some significant issues in relation to the interrelationship between Part 36 and the CRU situation in personal injury cases. KEY POINTS A claimant who recovered…
FIXED COSTS AND CLAIMANT'S PART 36 OFFERS
This case must be read with the Court of decision in Broadhurst -v- Tan [2016] EWCA Civ 94. This effectively overrides this decision. Fixed costs do not apply when indemnity costs are ordered. There is a report, helpfully put online by…
TEN NEW YEAR'S RESOLUTIONS FOR LITIGATORS IN 2016
Some resolutions to keep you prosperous and out of difficulties in 2016. (Happy New Year) 1. NEVER, EVER, GUESS ABOUT A LIMITATION PERIOD (OR TAKE A CLIENT’S WORD FOR IT) Litigators of all types must have a clear idea about…
YOU DON'T HAVE TO CLAIM INTERLOCUTORY RELIEF TO BE ENTITLED TO DAMAGES FOR BREACH
In Energysolutions EU Limited -v- Nuclear Decommissioning Authority [2015] EWCA Civ 1262 the Court of Appeal considered the issue of whether it is necessary for a party to litigate in order to be entitled to claim damages. The case concerns…
CHILDREN AND SUCCESS FEES 3: APPEAL WITHDRAWN
Earlier posts looked at the decision of Regional Cost Judge Lumb in A & B -v- The Royal Mail Group [2015] EW Misc B24(CC)(14th August 2015). The second judgment on costs is now available on Bailli. These posts deal with deduction of…
PROPORTIONALITY AND SURVIVAL FOR LITIGATORS 4: CLAIM ONLY WHAT YOU CAN PROVE
Proportionality is, mostly, about money. The problems that proportionality causes increase in those cases where the sums recovered are much less than those originally sought. The over-claiming of damages is a dangerous tactic for many reasons. Not least it…
PROVING THINGS BY EVIDENCE: SUCH A QUAINT, OLD FASHIONED CONCEPT
The judgment of the Court of Appeal in One Money Mail Ltd -v- RIA Financial Services [2015] EWCA Civ 1084 highlights a surprisingly common theme in many judgments. A party wants damages but has simply failed to adduce the evidence…
INTEREST WHERE THE CLAIM WAS OVER A PROLONGED PERIOD:JUDGMENT ACT RATE NO LONGER APPROPRIATE
There were many procedural issues in the Court of Appeal decision in Oyesanya -v- Mid-Yorkshire Hospital Trust [2015] EWCA Civ 1049. Some of them will be looked at in later posts. Here we look at the appropriate approach of the…
HIGHWAYMEN, EVIDENCE AND DAMAGES ALL ON THE MENU.
There are some interesting observations in the judgment of Mr Recorder Acton David QC in Luffeorm Limited -v- Kitsons LLP [2015] EWHC B10(QB). This illustrates some important issues in relation to evidence and the need to prove damages. “The Highwayman’s…
LITIGATION RISKS AND MITIGATION OF LOSS: "MEDIATION IS A JUDGMENT CALL": WHEN IS A REFUSAL TO MEDIATE REASONABLE?
The issue of whether a failure to mediate represented a failure to mitigate loss was considered by Judge Pelling QC (sitting as a High Court judge) in Orientfield Holdings Ltd -v- Bird & Bird [2015] EWHC 1963 (Ch). “Having embarked…
"FUNDAMENTAL DISHONESTY" A ROUND UP OF CASES & COMMENTARY
The earlier post on the procedural aspects of “fundamental” dishonesty led to the most visitors to the blog in a weekend ever. Here we look at posts, articles, comments and cases in relation to the concept of fundamental dishonesty. REPORTED…
INTERIM PAYMENTS; SERIOUS INJURY; ACCOMMODATION AND EELES
The very first post on this blog was a review of the law relating to interim payments in personal injury cases after Eeles. This issue was raised against in the decision of Grainger -v- Cooper [2015] EWHC 1132 (QB). THE…
CHANGES TO THE PRE-ACTION PROTOCOLS THAT WE KNOW ABOUT: LOW VALUE ROAD TRAFFIC ACCIDENTS
Important changes have been made to the Pre-Action Protocols which came into force yesterday. At the moment the whereabout of the the Protocols is a mystery in that they have not been published generally. However there are some changes to…
FATAL ACCIDENT AND FATAL PLEADINGS: THE NEED TO PLEAD AND PROVE FOREIGN LAW
On the face of it the case of Bianco -v- Bennett [2015] EWHC 626 (QB) is simply a case about fatal accidents. I was going to discuss it solely on the Fatal Accident Blog. On close reading, however, it reveals…
PLEADINGS, EVIDENCE & PUTTING THE CLAIMANT TO PROOF: AHMED -v- LALIK & THE CO-OP
In Ahmed -v- Lalik & Co-operative Insurance Society Limited [2015] EWCA 651 (QB) Mr Justice Cranston considered some important issues in relation to pleading, evidence and procedure in a case where a defendant insurer has suspicions about the nature of…
SIXTY YEARS OF MUNKMAN ON DAMAGES: A PICTORIAL HISTORY
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MITIGATING THE IMPACT OF THE COURT FEE INCREASE 3: ONLY CLAIM WHAT ITS WORTH AND WHAT YOU ARE GOING TO GET
This is the third in the series on mitigating the effect of court fees. The new fees regime makes clear the need for as much accuracy as possible in assessing what the likely award is going to be. An additional…
INADEQUATE WITNESS STATEMENTS LEAD TO CASE BEING STRUCK OUT AT TRIAL
We have looked at the case of Devon & Cornwall Autistic Community Trust -v- Cornwall Council before. In the first report Mr Justice Green refused an application to adjourn a trial date but gave permission to serve witness evidence late….
CHILDREN CASES AND THE RECOVERY OF A SUCCESS FEE: CHANGES COMING INTO FORCE ON APRIL 6th
Amidst all the changes to Part 36 it is easy to miss the fact that changes in relation to children cases on the 6th April 2015. In essence this provides a mechanism for the court to consider the deduction of…
EVIDENCE AND CAUSATION: COMMON SENSE CAN BE APPLIED
In Soboleska -v- Threlfall [2014] EWHC 4219 (QB) Mr Justice Foskett made some important observations about the use of commonsense in assessing the likely cause of serious injuries suffered in a road traffic accident. THE FACTS The claimant suffered physical…
GETTING EVIDENCE TO TRIAL TO PROVE YOUR CASE: BE CAREFUL OF "MISSING" WITNESSES?
This has been, it has to be said, an interesting week for considering evidence in civil cases. Another interesting example can be found in the decision in Howmet Ltd -v- Economy Services Limited [2014] EWHC 3933 (TCC), a decision by…
WITNESS STATEMENTS THAT HARM RATHER THAN HELP AND A FAILURE TO PROVE DAMAGES: A HIGH COURT CASE EXAMINED
In Re-Use Collections Limited -v- Sendall & May Glass Recycling Ltd [2014] EWHC 3852 (QB) H.H. Judge Davies made some important observations about drafting witness statements. It is positively unwise to “cross-reference” witness statements to the evidence of other witnesses…
EVIDENCE: PROVING DAMAGES AND INTEREST ON DAMAGES: YOU CAN'T SUGAR THE PILL AND HAVE TO PROVE THE LOSS
The final paragraphs of the judgment of Mr Justice Eder in Sugar Hut Group -v- AJ Insurance [2014] EWHC 3352 (Comm) has some important lessons on the need to adduce evidence to prove losses. It also contains a discussion of…
INTEREST AND COSTS WHEN A CLAIMANT BEATS THEIR OWN PART 36 OFFER: WATCHORN –v- JUPITER CONSIDERED
There have been relatively few cases dealing with the approach of the courts under the new Part 36 provisions when a claimant beats their own Part 36 offer at trial. The judgment of HH Judge Purle QC in Watchorn -v-…
CAPS ON DAMAGES AND PART 36: THE INTELLECTUAL PROPERTY ENTERPRISE COURT
Some interesting and important points of procedure were considered today by H.H. Judge Hacon in Abbot -v- Design & Display Ltd [2014] EWHC 3243 (IPEC). Firstly in relation to the rules of the Intellectual Property Enterprise Court and the damages…
SORTING MAJOR PROBLEMS OUT IN THE MIDDLE OF A TRIAL: SCHEDULES AND STATEMENT OF ISSUES SHOULD BE PREPARED IN ADVANCE NOT DURING A TRIAL
The major purpose of case management is to ensure that when a matter reaches trial the parties, and the judge, know precisely what the issues are in Redd Factors -v- Bombadier Transportation [2014] EWCH 3138 (QB) this process clearly went…
CALDERBANK OFFER HAD NO EFFECT ON OUTCOME IN RELATION TO COSTS:
Some parties make “Calderbank” offers in place of Part 36 offers. The effect of a Calderbank offer and whether it should affect an order for costs was considered by the Court of Appeal today in Coward -v- Phaesetos [2014] EWCA…
INVOLUNTARY BAILMENT AND CIVIL PROCEDURE: CAMPBELL -v- REDSTONE CONSIDERED
The law as to bailment sometimes raises its head in civil procedure. It is relevant for instance when someone damages a car which is borrowed. It is more significant in relation to the duties owed in relation to goods left…
SUCCESS FEES IN CHILDREN CASES: LIVERPOOL AND MANCHESTER PRACTICE
The question of deducting success fees from the damages of a child remains a vexed one. I am grateful to Gillian Shaw from Paul Rooney LLP Solicitors who sent me the following note in relation to the practice in Liverpool…
THE JUDGE, THE EXPERT, CAUSATION AND DAMAGES: THE APPROPRIATE APPROACH WHEN THE DEFENDANT HAS MADE A BAD SITUATION WORSE
The decision of Foskett J in Reaney -v- University Hospital of North Staffordshire NHS Trust [2014] EWHC 2016 (QB) contains important observations on the role of the judge and the expert in assessing damages for care. It also contains a…
COSTS CLAIMED AS DAMAGES 2: THE CASE LAW IN DETAIL
I am grateful to P.J.Kirby Q.C. for responding to the previous post on costs claimed as damages. The situation is far more complex than the passage cited in the Rentokil case suggests. THE ISSUE P.J. asked whether the case of…
WHAT IS THE POSITION WHEN LEGAL COSTS ARE CLAIMED AS A HEAD OF DAMAGES?
The case of Rentokil Initial -v- Goodman Derrick LLP [2014] EWHC 2994 (Ch) was looked at in the previous post in relation to evidence. However it also raised an interesting issue as to the approach a court should take when a…
WHAT CAN THE DEFENDANT ARGUE ABOUT DAMAGES AFTER A DEFAULT JUDGMENT 2: A CLINICAL NEGLIGENCE CASE
We have looked before at the question of what a defendant can argue in relation to damages after a judgment has been entered. A case reported today examines this issue in relation to judgment in a clinical negligence action. SYMES -V-…
ALLOCATION BETWEEN THE SMALL CLAIMS TRACK AND THE FAST TRACK: WHAT IS MEANT BY "ANY AMOUNT NOT IN DISPUTE"?
In the case of Akhtar -v- Boland [2014] EWCA Civ 872 the Court of Appeal gave guidance on CPR 26 and the matters to be considered when a determination is made as to allocation between the Fast Track and the…
