PROVING THINGS 158: NOW – WHY WOULDN’T BANKS WANT TO REVEAL DETAILS OF THE BONUSES THEY PAID?
The judgment in Credit Suisse Securities (Europe) Ltd & Ors v HM Revenue and Customs [2019] EWHC 1922 (Ch) demonstrates a strange position on the part of the claimant bank. The claimant banks did not adduce any evidence to prove…
CLAIMS FOR LOSS OF EARNINGS: LAW, PROCEDURE AND EVIDENCE: PROVE IT OR LOSE IT: WEBINAR 10th SEPTEMBER 2019
I am giving a webinar on the 10th September 2019: “CLAIMS FOR LOSS OF EARNINGS: LAW, PROCEDURE AND EVIDENCE: PROVE IT OR LOSE IT!” CONTENT The webinar will cover: The law as to loss of earnings How a claim for…
CIVIL PROCEDURE BACK TO BASICS 53A: PART 36 AND COSTS AFTER THE COURT HAS LIMITED THE BUDGET TO COURT FEES: ALI -v-CHANNEL 5
Shortly after I completed the post on Part 36 offers after the costs budget has been confined to court fees Professor Dominic Regan reminded me that there is another example in Ali & Anor v Channel 5 Broadcast Ltd [2018] EWHC…
LITIGATION THAT WAS “TOTALLY OUT OF PROPORTION”: THE CLAIMANT SHOULD HAVE CUT THEIR CASE TO SUIT THEIR CLOTH: (SOMETHING ABOUT BUNDLES TOO)
In White Winston Select Asset Funds LLC & Anor v Mahon & Anor [2019] EWHC 1381 (Ch) HHJ Simon Barker QC had some telling words about the manner in which the claimant had conducted litigation. What is remarkable about this…
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
In AB v KL [2019] EWHC 611 (QB) David Edwards QC (sitting as a judge of the High Court) considered the nature of the evidence needed to establish damages under the Fatal Accidents Act 1976. It is also important both…
FATAL ACCIDENTS: PROPOSED AMENDMENTS TO BEREAVEMENT PAYMENTS : ADVANCE NOTICE FOR LECTURES LATER IN THE YEAR (AND A NEW EDITION OF A BOOK…)
The government is, at long last, putting forward a draft remedial order to amend Section 1A of the Fatal Accidents Act 1976. This would allow cohabitees, who have been living together for more than two years, to recover the statutory…
WHAT’S IN A NAME? “PAYOUTS”, “WINS” AND THE SERIOUSLY INJURED CLAIMANT
As lawyers we know, or should know, the dangers of putting pejorative labels on things. In litigation we are fortunate in that an attempt to label parties, or issues, pejoratively, often backfires. However we often see the pejorative labelling of…
PERMISSION TO AMEND GIVEN TO PLEAD COSTS PAID IN PREVIOUS ACTION AS DAMAGES: GAMBLING ON GETTING A SECOND CHANCE
In Playboy Club London Ltd v Banca Nazionale Del Lavora SPA [2019] EWHC 303 (Comm) the High Court granted the claimant permission to amend to include, as a claim for damages, the costs of a previous action. “I have come to…
PROVING THINGS 141: CREDIBILITY WAS IMPORTANT IN CLAIM FOR DAMAGES AGAINST SOLICITORS: SUPREME COURT RESTORES DECISION OF TRIAL JUDGE
In Perry v Raleys Solicitors [2019] UKSC 5 the Supreme Court restored the decision of the trial judge in relation to damages. One of the key issues was whether the Court of Appeal was correct to overturn the trial judge’s factual…
PERIODICAL PAYMENTS, ASBESTOS CASES AND THE CONDUCT OF LITIGATION: AMBUSH IS TO BE AVOIDED
In the judgment today in Howard v The Imperial London Hotels Ltd [2019] EWHC 202 (QB) Master Thornett had to consider whether periodical payments were suitable for someone with a very short life expectancy. The judgment is a careful and sensitive…
PROVING THINGS 140: SPECULATIVE EVIDENCE NOT ENOUGH TO PROVE A “LOSS OF CHANCE”
In Dymoke v Association for Dance Movement Pyschotherapy UK Ltd [2019] EWHC 94 (QB) Mr Justice Popplewell found that a claimant had not adduced sufficient evidence to prove a “loss of chance” in a claim for damages. This shows that a…
PROVING THINGS 137: PROVING A DEFENCE TO A COUNTERCLAIM: NO EVIDENCE TO PROVE MATTERS – THEN JUDGMENT IS GOING TO BE ENTERED AGAINST YOU
The judgment in UK Dry Risers Ltd v Maher [2019] EWHC 44 (QB) shows the importance of being able to prove a defence to a counterclaim. The claimant succeeded on a claim for £3,690.72, the defendant obtained a judgment for £13,628.00. …
NOT TELLING THE CLAIMANT THE AMOUNT OF HIS DAMAGES: JUDICIAL APPROVAL OBTAINED
In EXB v FDZ & Ors [2018] EWHC 3456 (QB) Mr Justice Foskett had to consider the approach of the court when it was felt to in the claimant’s best interests not to be told of the size of his award…
A STRATEGY WHEN SETTLEMENT IS REACHED WITH SOME, BUT NOT ALL, DEFENDANTS
An earlier post dealt with the judgment in McDermott -v- Inhealth Limited (19/07/2018) in relation to costs liability when a claimant settled against some, but not all, defendants in a clinical negligence case. That judgment was sent to me by Thomas Riis-Bristow, Associate…
YOU’RE FIRED: A LITIGATOR ON THE APPRENTICE 8: “THE BIGGEST ATTEMPT AT ROBBERY SINCE HATTON GARDEN”: DID OUR LAWYER GET THEIR HANDS DIRTY?
We have one surviving lawyer – Sarah Ann. This week she switched teams – to “Collaborative” and turned her hand to garden design, even getting her hands dirty in the process. Her team won. This series continues for another week….
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…
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…
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…
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…
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…
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…
CLAIMANTS WERE NOT CREDIBLE: DEFENDANT’S APPEAL SUCCESSFUL: “THE DEFENDANT PRESENTED AN ANSWERABLE CASE THAT THE CLAIMANTS FAILED TO PROVE THEIR CASE”
In Richards & Anor v Morris [2018] EWHC 1289 (QB) the defendant was successful in appealing on the grounds that the trial judge should have made more robust findings from the lack of credibility on the part of the claimants. There…
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 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 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…
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…
FUNDAMENTAL DISHONESTY: INACCURATE STATEMENT OF MEDICAL TREATMENT WAS DISHONEST: NO “SUBSTANTIAL INJUSTICE”
One of the many complex issues that Mrs Justice Cockerill considered in Razumas v Ministry of Justice [2018] EWHC 215 (QB) today was the question of fundamental dishonesty. The claimant gave a misleading account of medical treatment. He was found to…
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…
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…
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 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…
SOME FEEDBACK – WHEN DEFENCE TURNS TO COUNTERCLAIM
Feedback from readers is rare. I received a letter today which the author has given be permission to reproduce. Just a quick note of thanks. I’m an LIP, having been involved in litigation as defendant for the last 3…
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…
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…
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