(NOT) PROVING THINGS 272: AN ABSENT WITNESS LEADS TO ADVERSE INFERENCES BEING DRAWN: PROBLEM OCCUR WHEN YOUR CASE AT TRIAL IS WHOLLY DIFFERENT TO THE PLEADED CASE
Many people have noted that the argument that the court should draw adverse inferences from the absence of key witnesses is often bypassed by the courts, with judges preferring to base their decisions on the evidence of witnesses that are…
PROVING THINGS 271: “THAT IS SIMPLY NOT AN ADEQUATE WAY OF ADVANCING A CLAIM FOR £8 MILLION”:
We are looking at a case that shows that both sides can fail to prove things. Here we have a claimant who failed to prove a claim for £8 million. On any view this was quite a significant omission. (No evidence…
PROVING THINGS 270: DEFENDANT FAILS TO PROVE A FAILURE TO MITIGATE LOSS: NO MARKET FOR REJECTED HOSPITAL GOWNS
The burden of proving a failure to mitigate loss lies on the party alleging it. It is a case that has to be pleaded. Once pleaded then the case has to be proven. Here we look at a case where…
PROVING THINGS 269: PROVING THAT A SOLICITOR WAS DISHONEST: IS TURNING A “BLIND EYE” ENOUGH?
This is an important and interesting case about findings of dishonesty on the part of a practising solicitor in their failure to make relevant checks on the background of their client. It was not suggested that the solicitor was aware…
MEMBER NEWS: MORE ON THE “BACK CATALOGUE 2”: THE FIRST 100 POSTS ON “PROVING THINGS”: “IF YOU DON’T PROVE IT YOU DON’T GET IT”
The “Proving things” series has proven to be very resilient and very long lasting. It started in February 2016 and, as of today, there are 267 posts under this heading. More often than the matters covered relate to “not proving…
PERSONAL INJURY POINTS 9 : COURT OF APPEAL CONSIDER ISSUES OF LIABILITY FOR INJURIES CAUSED IN A RUGBY MATCH: WHAT IS THE APPROPRIATE LEGAL TEST?
There are relatively few cases in which the Court of Appeal looks at civil claims for injuries caused in the course of sporting activity. We are looking at such a case here. The Court addresses the question of what standard…
PROVING THINGS 265: SPEND SIX WEEKS IN COURT, WIN ON LIABILITY AND RECEIVE NOTHING IN DAMAGES: TOY STORY – THE SCARY VERSION
Here we have a case where the claimant spent some six weeks in court, established that the defendant was in breach, but recovered nothing in damages. It may well be an object lesson in failing to prove loss. (A photo taken…
PROVING THINGS 264: CLAIMANTS FAIL TO PROVE THAT THEY ARE ENTITLED TO AN INJUNCTION: “THE EVIDENCE PRESENTED BY THE CLAIMANTS DOES NOT COME CLOSE TO DEMONSTRATING A COMPELLING JUSTIFICATION FOR THE ORDER”
We are looking at a case where there was clear example of a failure to prove things. The claimants did not have sufficient evidence to satisfy the court it should make the order they were seeking. In fact the judgment…
PROVING THINGS 263: “IT IS A FUNDAMENTAL PRINCIPLE OF LITIGATION THAT A CLAIMANT MUST PROVE THEIR LOSS… THEY MUST ALSO SATISFY THE COURT AS TO THE AMOUNT OF ANY LOSS WHICH THEY HAVE SUFFERED”
This series has now covered hundreds of examples where litigants have failed to prove their case. We are looking at another example here where a counterclaiming defendant adduced no substantive evidence of a claim said to be worth nearly £500,000. …
PROVING THINGS 261: PROVING FUTURE INTENTIONS: AN INTENTION TO HAVE MEDICAL OPERATIONS CARRIED OUT PRIVATELY
Today we are looking at a case where the defendant appealed against a decision that the claimant could recover the future cost of medical treatment to be carried out on a private basis. Statute states that there is no duty…
PERSONAL INJURY POINTS 2: CONTRIBUTORY NEGLIGENCE, CAUSATION, EVIDENCE AND FAILURE TO WEAR A CYCLE HELMET (SOMETHING ABOUT PLEADINGS TOO)
In the previous post in this series I mentioned that there was a backlog. I didn’t anticipate that I would be looking at a case that was decided in 2009. However the judgment has recently arrived on BAILLI and it…
DEDUCTIONS OF INSURANCE PAYMENTS FROM PERSONAL INJURY DAMAGES: TWO RECENT CASES CONSIDERED: A POINT FOR BOTH CLAIMANTS AND DEFENDANTS TO WATCH
The principle that insurance payments are sometimes deducted from a claim for personal injury damages is overlooked. Here we are looking at two recent cases where this principle was considered and applied. In one case, at least, the principle does not…
DEALING WITH THE COUNTER-SCHEDULE AND THE DEFENDANT’S ARGUMENTS IN RELATION TO DAMAGES: WEBINAR 7th MAY 2025
Much of the task of the claimant lawyer concentrates on the task of building up the claim for damages to ensure proper compensation. However it is essential that the lawyer if fully aware of the arguments, case law and principles…
RECENT CASES ON LOSS OF EARNINGS: WHAT CAN WE LEARN FROM THEM? WEBINAR 23rd APRIL 2025
Practitioners can learn a lot from looking at judgments on claims for loss of earnings. These provide a practical grounding of how the courts approach such claims and, in particular, how judges consider the evidence (or absence of evidence) in…
PROVING THINGS 260: COURT OF APPEAL JUDGMENT ON ADVERSE INFERENCES: “WE REJECT THIS NEW WAY OF PUTTING THE ADVERSE INFERENCE CASE”
I am grateful to David Platt KC for drawing my attention to the Court of Appeal decision in Alexander Johnstone v Fawcett’s Garage (Newbury) Limited [2025] EWCA Civ 467, in particular to the judgment in relation to adverse inferences. The Court of…
PROVING DAMAGES – THE CLAIMANT LAWYER’S BASIC TASK: WEBINAR 19th MARCH 2025
The “Proving Things” series on this blog is now up to number 256. The vast majority of this series is, in fact, about not proving things. That is where litigants fail to bring sufficient (sometimes any) evidence to court to prove…
PROVING THINGS 256: CLAIMANT FAILS TO ESTABLISH LIABILITY AFTER FALLING FROM A HORSE: THE ANIMALS ACT CONSIDERED
This blog has looked at the judgment in Boyd v Hughes [2025] EWHC 435 (KB) several times in relation to procedural issues and assertions of dishonesty. However the case, ultimately, was about a claimant who was injured when she fell…
PROVING THINGS 255: CLAIMANT FAILS TO PROVE IT HAS SUFFERED ANY LOSS AT ALL: THERE WAS NO GRIST TO THIS MILL
In Trident House Development Limited v Mohammed Yousaf [2025] EWHC 344 (Ch) HHJ Klein (sitting as a High Court Judge) found that a claimant had failed to establish it had suffered any loss at all in its claim for damages against the…
68 YEARS AND STILL ROLLING OFF THE PRESS: THE 15TH EDITION OF MUNKMAN (& EXALL) ON DAMAGES:A LOOK AT THE PAST EDITIONS AND WHAT WE CAN LEARN
The latest edition of what, used to be called, Munkman on Damages is now hot off the press. This is the 15th edition, the first being written in 1956. Now called Munkman and Exall on Damages for Personal Injury and…
PROVING THINGS 251: TRIAL JUDGE FINDS THAT DEFENDANT’S LETTER WAS NOT WRITTEN CONTEMPORANEOUSLY AND CONCOCTED IN AN ATTEMPT TO EXCULPATE
The judgment of HHJ Berkley in Melia & Anor v Tamlyn And Son ltd [2024] EWHC 3002 (Ch) has a number of interesting aspects in relation to the assessment of evidence. One of those things is the judge’s rejection of…
PROVING THINGS 250: SOLICITOR FAILS TO PROVE THAT FORMER CLIENT WAS RESPONSIBLE FOR ONLINE REVIEWS
In Samuels t/a Samuels & Co Solicitors v Henry [2024] EWHC 2898 (KB) Deputy Master Marzec found that the claimant failed to prove that the defendant was responsible for adverse online reviews. He also rejected the claimant’s application that the…
PROVING THINGS 249: CYCLIST FAILS TO PROVE THAT A DEFECTIVE KERBSTONE WAS THE CAUSE OF AN ACCIDENT: BETTER PHOTOGRAPHS WOULD HELP
In Robertson v Cornwall Council [2024] EWHC 2830 (KB) Mr Justice Linden dismissed an appeal in a case where the claimant had failed to establish liability at trial. The trial judge had found that the claimant had not established the…
PROVING THINGS 248: CLAIMANT FAILS TO ESTABLISH ANY CASE AS TO CAUSATION IN A NEGLIGENCE CASE AGAINST SOLICITORS
In Blower v GH Canfields LLP [2024] EWHC 2763 (Ch) HHJ Matthews (sitting as a High Court Judge) rejected a claimant’s case on negligence against a firm of solicitors who had reached a settlement of an action against her and…
PROVING THINGS 245: A FAILURE TO PROVE A LOSS OF EARNINGS: A CLAIM PUT AT OVER £2 MILLION AND £23,000 AWARDED
In McInerney v Nottinghamshire Healthcare NHS Foundation Trust (Victimisation) [2024] EAT 158 HHJ James Tayler (in the Employment Appeal Tribunal) dismissed the claimant’s appeal in relation to loss of earnings. The Employment Tribunal had found that the claimant had failed…
PROVING THINGS 244: WHERE THERE IS A “GENUINE DIFFERENCE OF OPINION” BETWEEN EXPERTS : CLAIMANT FAILS TO ESTABLISH LIABILITY IN A CLINICAL NEGLIGENCE CASE
Many of the cases on this blog that consider experts feature judicial criticism of those experts. Sometimes because of a failure to take into account the duties owed by those experts. However litigation is more complicated than that. It is…
PROVING THINGS 242: THE CLAIMANT WHO WAS GIVEN A SECOND CHANCE TO PROVE HIS DAMAGES CLAIM
We are looking again at the judgment of Mr Justice Julian Knowles in Allard v Govia Thameslink Railway Ltd [2024] EWHC 2227 (KB). This was looked at earlier in relation to the trial judge’s observations about the wholly inadequate counter-schedule. However…
PROVING THINGS 240: PROVING THE “EELES” CRITERIA ON AN APPLICATION FOR AN INTERIM PAYMENT: GAPS IN THE EVIDENCE PREVENT A FINAL DETERMINATION BEING MADE
In XS1 (A Child) v West Hertfordshire Hospitals NHS Trust [2024] EWHC 1865 (KB) Master Stevens adjourned a claimant’s application for a substantial interim payment. The primary ground for this was that there was insufficient evidence before the court to…
IS ANYTHING IMPORTANT HAPPENING ON THE 4TH JULY? WEBINAR ON CONTRIBUTORY NEGLIGENCE – RECENT CASES
There is a danger that this webinar may be overshadowed by other events on the day. This webinar considers the law and practice in relation to contributory negligence. Booking details are available here. THE WEBINAR The webinar considers the…
PROVING THINGS 238: TAX AND FILMS: A DANGEROUS MIX – BUT THE CLAIMANTS FAILED TO PROVE THEY HAD LOST ANYTHING
In Upham & Ors v HSBC UK Bank PLC [2024] EWHC 849 (Comm) Mr Justice Bright considered the losses said to be suffered by a number of claimants who had invested in a tax deferment scheme. Most of the claimants…
PROVING THINGS 237: CLAIMANT FAILS TO PROVE ITS CASE, FAILS TO PROVE IT HAD SUFFERED DAMAGES HAD IT SUCCEEDED (SOMETHING ABOUT EXPERT EVIDENCE TOO)
In Hamsard One Thousand And Forty-Three Ltd v AE Insurance Brokers Ltd [2024] EWHC 262 (Comm) the claimant failed to establish its case. The judgment shows many issues with the claimant’s evidence, in particular the problems that flowed from issues…
DAMAGES FOR THE SELF EMPLOYED AND THOSE INVOLVED IN ENTERTAINMENT AND SPORT: WEBINAR 25th JANUARY 2024
On the 24th January there is a webinar looking at claims for damages for self-employed people. It also looks at the issues relating to losses, particularly loss of earnings, caused by those involved in sports and entertainment (it also looks…
PROVING THINGS 236: CLAIMANT’S ARGUMENT THAT IT HAD LOST MORE THAN £6 MILLION FAILED TO TRAVEL: CAUSATION NOT ESTABLISHED
The judgment of Simon Tinkler, sitting as a Deputy High Court Judge, in Ickenham Travel Group Ltd v Tiffin Green Ltd [2024] EWHC 27 (Comm) is another classic example of a failure to prove damages. The defendant had been in…
COST BITES 124 : EARLY VIEW AS TO VALUE OF A PERSONAL INJURY CASE WAS NOT UNREASONABLE: DEFENDANT’S APPEAL DISMISSED
I am grateful to solicitor John McQuater for sending me a copy of the judgment of HHJ Sadiq in Drury -v- Yorkshire Aggregates Limited (a decision made in January this year, but the transcript has only just become available). It…
PROVING THINGS 233: THE DEFENDANT WAS NEGLIGENT – BUT THE DAMAGES ARE NIL
In Hope Capital Ltd v Alexander Reece Thomson LLP [2023] EWHC 2389 (KB) Mr Justice Constable found that the claimant had suffered no loss. This could be an expensive loss for the claimant, after a seven day trial. “”For these…
A TARGETED FORM OF ILLEGALITY AS A DEFENCE TO DAMAGES: CAR DRIVER WHO HAD NO MOT FOR DAMAGED CAR COULD NOT RECOVER COSTS OF HIRE OF ALTERNATIVE VEHICLE
In Ali v HSF Logistics Polska SP ZOO [2023] EWHC 2159 (KB) Mr Justice Martin Spencer considered the question of whether there was a “targeted” defence of illegality to a claim for damages which was not as all embracing as…
DRAFTING SCHEDULES OF DAMAGES: “THE SCHEDULE WAS A FICTION … THE POINT WAS RECOGNISED ON BEHALF OF BOTH CLAIMANTS”: SELECTED QUOTES (AND A WEBINAR)
The the judgment of Costs Judge James in HD v Northern Devon Healthcare NHS Trust [2023] EWHC 2118 (SCCO) is one of a long series of cases where judges have been critical of the way in which schedules of damages have been…
PROVING THINGS 229: CLAIMANT FAILS TO PROVE CERTAIN HEADS OF DAMAGES: DECISION UPHELD ON APPEAL
The judgment of Mr Justice Ritchie in Lal v Reeder [2023] EWHC 1437 (KB) is a classic example of a failure to prove things. The trial judge found that the claimant had failed to establish certain heads of damage. That…
PROVING THINGS 228: INADEQUATE DISCLOSURE AND WITNESS STATEMENTS “IN ALMOST IDENTICAL FORMAT” FAIL TO BRING HOME THE DOUGH
The judgment of Lionel Persey KC (sitting as a Judge of the High Court) in Finsbury Food Group Plc v Axis Corporate Capital UK Ltd [2023] EWHC 1559 (Comm) shows some significant issues in relation to the evidence presented in…
PROVING THINGS 227: IF YOU ARE GOING TO ALLEGE THAT LAWYERS WERE NEGLIGENT IN NOT CALLING EVIDENCE THEN YOU REALLY SHOULD REALLY HAVE THAT EVIDENCE TO HAND
The decision in Murithi & Ors v AVH Legal LLP (t/a Tandem Law) & Ors [2023] EWHC 1245 (KB) has in some ways a profound irony. A case alleging negligence by lawyers for failing to call evidence itself failed because…
PROVING THINGS 226: PROVING CONTRIBUTORY NEGLIGENCE (AND A WEBINAR ON THAT VERY SUBJECT…)
There is often very little attention paid to judgments in relation to contributory negligence. Commentators tend to concentrate, on the whole, on primary liability. If considered at all contributory negligence is often an after thought – a “finding on the…
COSTS BITES 86: COSTS OF INSTRUCTING LEADING COUNSEL IN A £115,000 CLAIM WERE NOT RECOVERABLE: A LITIGANT CANNOT “DEPLOY UNLIMITED RESOURCES TO FIGHT CASES AND EXPECT TO RECOVER THOSE COSTS FROM THE LOSING PART”
In Coram v D R Dunthorn & Son Ltd [2023] EWHC 731 (SCCO) Deputy Costs Judge Joseph affirmed his original decision on provisional assessment that the costs of instructing leading counsel to attend a three day trial were not recoverable…
PROVING THINGS 255: HEARSAY NOTICE FROM AN ANONYMOUS CALLER HELPED DETERMINE KEY FINDINGS IN A CIVIL CASE: JUDGMENT IN FAVOUR OF THE CLAIMANT
The judgment of Her Honour Judge Howells (sitting as a Deputy High Court Judge) in Brown & Anor v Sestras & Ors [2023] EWHC 1220 (KB) is an interesting example of the use of hearsay, indeed anonymous evidence. An unknown…
PROVING THINGS 254: WHY YOU CAN NEVER BE CERTAIN ON BEING ABLE TO ESTABLISH CAUSATION: DEFENDANT’S CONDUCT QUESTIONABLE BUT STILL CLAIMANT FAILS TO ESTABLISH LOSS
There are plenty of examples in this series of claimants establishing breach of duty but failing on causation, particularly in the clinical negligence context. the judgment of Clare Padley (sitting as a High Court Judge) in J & J Franks…
PROVING THINGS 253: CLAIMANT FAILS TO PROVE DAMAGES: £123,000 CLAIMED REDUCED TO £946 HIRE AND REPAIR COSTS NOT ESTABLISHED AT ALL
The judgment of HHJ Malek in Mehmood v AIG Europe Ltd & Anor [2023] EW Misc 1 (CC) is a classic – if not graphic – example of a failure to prove damages. The claimant made a claim for £123,000…
PROVING THINGS 252: THE SOLICITORS WERE NEGLIGENT BUT THERE WAS NO LOSS: CLAIM DISMISSED
Many a salutary lesson can be learnt from the judgment of Mrs Justice Bacon in Cutlers Holdings Ltd & Anor v Shepherd And Wedderburn LLP [2023] EWHC 720 (Ch). It was a case about negligence in the conduct of litigation….
PROVING THINGS 251: PROVING THAT YOU STOLE MY DRAGON IS NOT AN EASY TASK: FIRE BREATHING MONSTERS ARE A VERY OLD CONCEPT INDEED
In Evans v John Lewis Plc & Anor [2023] EWHC 766 (IPECP HHJ Melissa Clarke (sitting as a High Court Judge) had to compare and contrast two fictional dragons. The claimant failed to establish that the defendants’ dragon was so…
PROVING THINGS 250: FAILING TO PROVE IMPECUNIOSITY: A BARE ASSERTION IS NOT ADEQUATE
The judgment of Lord Justice Underhill (refusing permission to appeal) in Credico Marketing Ltd & Anor v Lambert & Anor [2023] EWCA Civ 262 relates a party who failed to adduce sufficient evidence to show impecuniosity. “No evidence of Mr…
PROVING THINGS 248: THERE WAS A BREACH BUT THE CLAIMANT PROVED NO LOSS: “BATTLE OF TRAFALGAR” DOES NOT LEAD TO VICTORY
In Jerroms Trafalgars Ltd & Anor v Tilson & Ors [2022] EWHC 1420 (ChD) HHJ Worster found that a claimant had failed to established that breaches by the Defendants led to any loss. It is a classic example of a…
PROVING THINGS 247: A NON-CONVICTION CANNOT IMPOSE A CIVIL DUTY OF CARE: CLAIMANT FAILS IN PERSONAL INJURY ACTION
In Lewin v Gray [2023] EWHC 112 (KB) HHJ Robinson (sitting as a Judge of the High Court) decided the issue of liability against the claimant. The case involved questions relating to the duty of care and the impact of…
PROVING THINGS 245: DEFENDANTS FLOORED: THEY FAILED TO ESTABLISH THAT DISCLOSURE GIVEN INADVERTENTLY “ON THIS QUESTION, THE EVIDENCE BEFORE ME FROM THE DEFENDANTS IS LIMITED AND UNSATISFACTORY”
In Flowcrete UK Ltd & Ors v Vebro Polymers UK Ltd & Ors [2023] EWHC 22 (Comm) Mr Nigel Cooper KC (sitting as a High Court Judge) refused the defendants’ application to prevent the claimant from using certain documents that…
You must be logged in to post a comment.