PROVING THINGS 168: PROVING LOSS OF EARNINGS: COURT OF APPEAL DECISION:STATEMENTS OF OPINION OR BELIEF CARRY NO WEIGHT
The Court of Appeal judgment today in Irani v Duchon [2019] EWCA Civ 1846 adds to the Proving Things series in relation to a failure to establish key matters at trial (it also gives me an opportunity to promote the…
PROVING THINGS 147: CLAIM FOR NOT PURSUING NEGLIGENT SOLICITORS LEADS TO NOMINAL DAMAGES ONLY: NO DAMAGES FOR “LOSS OF CHANCE”
The judgment in Waraich & Anor v Ansari Solicitors (A firm) [2019] EWHC 1038 (Comm) HHJ Pearce also contains yet another example of claimants failing to prove any loss at trial. There was no evidence to support any claim for…
PROVING THINGS 146: NO EVIDENCE AT ALL TO PROVE A LOSS, OR THAT THE DEFENDANT CAUSED ANY “LOSS” (THIS IS BECOMING A FAMILIAR STORY)
The number of people who are willing to commit to large scale, and expensive, litigation without having the basic evidence to prove their case on damages has proven to be a staple fare for this series. Another example is the…
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 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 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…
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…
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…
PROVING THINGS 112: ITS NO USE JUST WAVING ACCOUNTANT’S REPORTS AROUND
In Berkshire Homes (Northern) Ltd v Newbury Venture Capital Ltd [2018] EWHC 938 (Ch) the respondent relied on accountant’s reports in an attempt to prove its case. The case shows that it is insufficient just to produce accounts. Evidence has to…
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 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 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 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…
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 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…
PROVING THINGS 75: PROVING CAUSATION ON AN UNDERTAKING TO PAY DAMAGES: THE INJUNCTION THAT COST THE APPLICANT TENS OF MILLIONS OF DOLLARS: ROUND 2
We have looked before at the decision in Fiona Trust & Holding Corporation -v- Yuri Privalov & others [2016]. An applicant for a freezing order was found to have obtained the order wrongly. Consequently they were ordered to pay damages that stretched…
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…
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…
PROVING THINGS 60: PUTTING SEAWEED OUT OF THE WINDOW: THE ABSENCE OF EVIDENCE AND THE JUDGE WHO WAS EVEN-HANDEDLY OFFENSIVE:
The Court of Appeal judgment in McBride -v- UK Insurance Ltd [2017] EWCA Civ 144 has been covered widely on the issue of the appropriate rate for car hire charges after an accident. However less widely discussed is the fact that,…
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…