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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. 4-5 Gray's Inn Square, London.
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PROVING THINGS 247: A NON-CONVICTION CANNOT IMPOSE A CIVIL DUTY OF CARE: CLAIMANT FAILS IN PERSONAL INJURY ACTION

PROVING THINGS 247: A NON-CONVICTION CANNOT IMPOSE A CIVIL DUTY OF CARE: CLAIMANT FAILS IN PERSONAL INJURY ACTION

January 25, 2023 · by gexall · in Personal Injury

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"

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”

January 12, 2023 · by gexall · in Civil evidence, Civil Procedure, Disclosure, Witness statements

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…

PROVING THINGS 237: FAILURE TO PROVE A NUISANCE: NO LOSS OF INCOME WHEN YOU WOULD NOT HAVE BEEN ABLE TO EARN IT

PROVING THINGS 237: FAILURE TO PROVE A NUISANCE: NO LOSS OF INCOME WHEN YOU WOULD NOT HAVE BEEN ABLE TO EARN IT

September 2, 2022 · by gexall · in Civil evidence, Damages

The judgment of HHJ Russen QC (sitting as a High Court Judge) in  Ray v Windrush Riverside Properties Ltd [2022] EWHC 2210 (TCC) gives two examples relevant to the “Proving Things” series. Firstly the claimant failed to prove a nuisance….

PROVING THINGS 235: PROVING SERVICE: COUNCIL'S WHOLESALE FAILURE TO SERVE CLAIM FORMS PROPERLY: ATTEMPTS AT PERSONAL SERVICE WERE A PREREQUISITE TO SERVICE BY ALTERNATIVE MEANS

PROVING THINGS 235: PROVING SERVICE: COUNCIL’S WHOLESALE FAILURE TO SERVE CLAIM FORMS PROPERLY: ATTEMPTS AT PERSONAL SERVICE WERE A PREREQUISITE TO SERVICE BY ALTERNATIVE MEANS

August 8, 2022 · by gexall · in Civil evidence, Service of the claim form

An important point as to service of the claim form arose in the judgment of Mr Justice Nicklin in Thurrock Council v Stokes & Ors [2022] EWHC 1998 (QB). The claimant had issued proceedings against multiple defendants. It obtained an…

PROVING THINGS 233: ASSESSING EVIDENCE AFTER 14 YEARS: THE CRUEL CONCEPT OF CAUSATION IN MEDICAL NEGLIGENCE

PROVING THINGS 233: ASSESSING EVIDENCE AFTER 14 YEARS: THE CRUEL CONCEPT OF CAUSATION IN MEDICAL NEGLIGENCE

May 19, 2022 · by gexall · in Civil evidence, Clinical Negligence, Witness statements

This blog has looked many times at issues relating to witness evidence and the judicial approach when hearing evidence of matters that happened a considerable time before trial.  The difficulties are made clear in the judgment of HHJ Emma Kelly…

PROVING THINGS 231: ASSESSING LOSS OF EARNINGS OF AN ARTIST: THE WIDE PALETTE OF APPROACHES THE COURT CAN TAKE

PROVING THINGS 231: ASSESSING LOSS OF EARNINGS OF AN ARTIST: THE WIDE PALETTE OF APPROACHES THE COURT CAN TAKE

May 12, 2022 · by gexall · in Civil evidence, Damages, Personal Injury

There are many cases where the courts have had to consider the loss of earnings of a claimant whose career pattern, and thus earnings, are not wholly certain. Often these relate to those working in sports or entertainment. In Mathieu…

PROVING THINGS 228: PLEADING AND PROVING MITIGATION OF LOSS: THE NEED FOR A DEFENDANT TO ESTABLISH A "CONCRETE CASE"

PROVING THINGS 228: PLEADING AND PROVING MITIGATION OF LOSS: THE NEED FOR A DEFENDANT TO ESTABLISH A “CONCRETE CASE”

April 19, 2022 · by gexall · in Civil evidence, Damages, Personal Injury

The judgment of Mrs Justice Hill in Mathieu v Hinds & Anor [2022] EWHC 924 (QB) is interesting for a large number of reasons. Here we look at the judgment in relation to pleading and proving mitigation of loss. “A…

PROVING THINGS 227: FAILURE TO PROVE A DEBT CLAIM: "THE PROOF REQUIRED TO DEMONSTRATE THAT THE CLAIMANT IS ENTITLED TO THE SUMS WHICH IT CLAIMS IS SADLY LACKING"

PROVING THINGS 227: FAILURE TO PROVE A DEBT CLAIM: “THE PROOF REQUIRED TO DEMONSTRATE THAT THE CLAIMANT IS ENTITLED TO THE SUMS WHICH IT CLAIMS IS SADLY LACKING”

March 23, 2022 · by gexall · in Appeals, Case Management, Civil evidence, Damages

The judgment of Mr Justice Turner in Emery Planning Partnership Ltd v Bevan [2022] EWHC 494 (QB) illustrates a failure by a claimant to prove a debt claim.  It is (yet another) object lesson that facts and evidence are needed…

PROVING THINGS 225: PROVING THAT A SIGNATURE WAS FORGED: DIVORCE PROCEEDINGS WERE NEVER SERVED

PROVING THINGS 225: PROVING THAT A SIGNATURE WAS FORGED: DIVORCE PROCEEDINGS WERE NEVER SERVED

January 31, 2022 · by gexall · in Civil evidence, Witness statements

In  Randhawa v Randhawa (Divorce: Decree Absolute, Set Aside, Forgery) [2021] EWFC B96 HHJ Moradifar found that a signature on an acknowledgment of service had been forged. Consequently the decree of divorce that followed was set aside. THE CASE The…

PROVING THINGS 222: SPENDING £200,000  IN COSTS OVER 9 INCHES OF LAND: BEYOND THE JUDGE'S COMPREHENSION AS TO HOW THIS GOT SO EXPENSIVE

PROVING THINGS 222: SPENDING £200,000 IN COSTS OVER 9 INCHES OF LAND: BEYOND THE JUDGE’S COMPREHENSION AS TO HOW THIS GOT SO EXPENSIVE

January 20, 2022 · by gexall · in Civil evidence, Costs, Costs budgeting

In Davis & Anor v Winner [2021] EW Misc 23 (CC) the parties between them appear to have spent over £200,000 in costs. This is a dispute over inches of land.  It is not surprising that HHJ Mithani QC expressed…

PROVING THINGS 221: THE COURT WILL NOT SPECULATE

PROVING THINGS 221: THE COURT WILL NOT SPECULATE

January 14, 2022 · by gexall · in Civil evidence, Damages

In Hirst & Anor v Dunbar & Ors [2022] EWHC 41 (TCC)  Mr Justice Eyre highlighted the need for a claimant to prove losses, and expenditure, the court will not speculate on items relating to expenditure.   “In my judgement…

PROVING THINGS 219: FAILING TO PROVE ALLEGATIONS OF FUNDAMENTAL DISHONESTY

PROVING THINGS 219: FAILING TO PROVE ALLEGATIONS OF FUNDAMENTAL DISHONESTY

December 6, 2021 · by gexall · in Civil evidence, Fundamental Dishonesty, Personal Injury

In Mathewson v Crump & Anor [2020] EWHC 3167 (QB) Dan Squires QC (sitting as a Deputy High Court Judge) did not accept the defendants’ submissions that the claimant had been fundamentally dishonest in pursuing a personal injury claim. THE…

THE NEED FOR A CLAIMANT TO PROVE INJURY:  WITHOUT EVIDENCE THE ACTION SHOULD NOT HAVE BEEN BROUGHT

THE NEED FOR A CLAIMANT TO PROVE INJURY: WITHOUT EVIDENCE THE ACTION SHOULD NOT HAVE BEEN BROUGHT

November 22, 2021 · by gexall · in Damages, Personal Injury, Webinar

The earlier post on proving causation  highlights the matters that claimants need to prove when bringing a claim for damages.  One essential element is that a claimant needs to prove damages.   One case that shows a clear illustration of this…

PROVING THINGS 218: THE NEED TO PROVE CAUSATION IN ADDITION TO BREACH OF DUTY

PROVING THINGS 218: THE NEED TO PROVE CAUSATION IN ADDITION TO BREACH OF DUTY

November 22, 2021 · by gexall · in Appeals, Personal Injury

The Court of Appeal judgment in Cunningham v Rochdale Metropolitan Borough Council [2021] EWCA Civ 1719 highlights the need to prove issues of causation in addition to breach of duty. THE CASE The claimant is a teacher who was attacked…

PROVING DAMAGES: WEBINAR 25th NOVEMBER 2021

PROVING DAMAGES: WEBINAR 25th NOVEMBER 2021

November 18, 2021 · by gexall · in Damages, Personal Injury, Webinar

At the moment there are 217 individual posts in the “Proving Things” series on this blog.   Many, if not most, of the posts relate to a failure by a party to prove a crucial piece of their case at trial….

PROVING THINGS 216: THE DANGERS OF RELYING ON EXPERT REPORT TO PROVE VALUE

PROVING THINGS 216: THE DANGERS OF RELYING ON EXPERT REPORT TO PROVE VALUE

September 3, 2021 · by gexall · in Civil evidence, Damages, Experts

There are some similarities between the case of Serene Construction Ltd v Salata and Associates Ltd & Ors [2021] EWHC 2433 (Ch) and the previous post in this series. In both cases the claimant’s case related to the valuation of…

PROVING THINGS 215: CLAIM £8.7 MILLION IN DAMAGES BUT RECOVER NOTHING: NOT SO MUCH A CASE OF EXPERT SHOPPING BUT EXPERTS ON SHOPPING CENTRES

PROVING THINGS 215: CLAIM £8.7 MILLION IN DAMAGES BUT RECOVER NOTHING: NOT SO MUCH A CASE OF EXPERT SHOPPING BUT EXPERTS ON SHOPPING CENTRES

September 2, 2021 · by gexall · in Damages, Experts

We have looked before at the judgment of HHJ Hodge (sitting as a High Court judge) in Ahuja Investments Ltd v Victorygame Ltd & Anor (CONTRACT – Purchase of commercial investment property) [2021] EWHC 2382 (Ch).  It is worth noting that…

PROVING THINGS 214: CORONAVIRUS, COMPANIES AND INSOLVENCY: PETITIONER FAILS TO PROVE ITS CASE

August 16, 2021 · by gexall · in Civil evidence, Civil Procedure, Coronavirus

The judgment of HHJ Kelly (sitting as a judge of the High Court) in A Company, Re [2021] EWHC 2289 (Ch) concerns some intricate provisions of the Corporate Insolvency and Governance Act 2020  Ultimately, however it was a matter of…

PROVING THINGS 214: SONGWRITING, COPYING AND DISCLOSURE: GIVE THEM A MINIM AND THEY'LL TAKE A MILE

PROVING THINGS 214: SONGWRITING, COPYING AND DISCLOSURE: GIVE THEM A MINIM AND THEY’LL TAKE A MILE

August 11, 2021 · by gexall · in Civil evidence, Disclosure

An interesting issue as to proof and evidence arose in the decision of Mr Justice Zacaroli in Smith v Dryden & Ors [2021] EWHC 2277 (IPEC).  The claimant failed to establish that a song had been “copied”.  There are also…

PROVING THINGS 213: CLINICAL NEGLIGENCE, WITNESS EVIDENCE AND MEDICAL NOTES

August 3, 2021 · by gexall · in Civil evidence, Clinical Negligence, Witness statements

In Sheard -v- Cao Tri Do [2021] EWHC 2166 (QB) HHJ Robinson, sitting as a Judge of the High Court, had to consider competing witness evidence in the context of a medical negligence action.  It is an example of the…

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