PROVING THINGS 212: MISTAKE, TRUSTS & TAXATION: “IT IS CLEAR THAT HIS WITNESS STATEMENT WAS CONSTRUCTED WITH ONLY PASSING REFERENCE TO WHAT HIS EVIDENCE IN CHIEF WOULD BE IF CALLED TO GIVE ORAL EVIDENCE”
The adequacy of witness evidence was considered in detail in the judgment of Deputy Master Marsh in Dukeries Healthcare Ltd v Bay Trust International Ltd & Ors [2021] EWHC 2086 (Ch). It shows the danger of setting out a case…
FAILURE TO COMPLY WITH DIRECTIONS IN THE FAMILY COURT: “THEY ARE NOT PREFERENCES, REQUESTS OR MERE INDICATIONS; THEY ARE ORDERS”
I am always wary of venturing into an area occupied by many exceptional family bloggers. However court order, and in particular compliance with court orders, is part of the regular diet of this blog. That is why a case with…
PROVING THINGS 211: PROVING DAMAGES AND CAUSATION: CLAIM £3 MILLION GET £2,000: “A WEAK AND SPECULATIVE CLAIM”
We have already looked once at the judgment of Mr Justice Fraser in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1116 (TCC). However given that the claimants were seeking in excess of £3 million and…
PROVING THINGS 210: HAVE EVIDENCE OF VALUE AT TRIAL TO AVOID THAT SINKING FEELING
Famously a brand new car loses a substantial amount of its value once it is driven from the showroom. A similar principle may well apply to motor yachts. This issue was considered by Mr Simon Salzedo QC (sitting as a…
PROVING THINGS 209: SOLICITORS NEGLIGENCE ACTION DISMISSED BECAUSE THERE WAS NO LOSS: THE CLAIMED JEWEL WAS BIGGER THAN THE SOCKET
In Kingsley Napley LLP v Harris & Anor [2021] EWHC 901 (QB) Margaret Obi, sitting as a high court judge dismissed a claim for professional negligence on the basis that there had not been any loss. There are important lessons…
PROVING THINGS 208: IMPACT OF COVID MEANS THAT THE CLAIMANT HAS LOST NOTHING AND DEFENDANT GAIN NOTHING: NO AWARD FOR THE CLAIMANT’S “LOSSES”
The judgment of HHJ Hodge QC (sitting as a High Court judge) in Wigan Borough Council v Scullindale Global Ltd & Ors [2021] EWHC 779 (Ch) has much of interest. The judge’s observation that “one of the particular pleasures of…
PROVING THINGS 206: THE EMPLOYERS LIABILITY (DEFECTIVE EQUIPMENT) ACT 1969 IN ACTION
I am grateful to Martin McKenna from Aegis solicitors for sending me a copy of the judgment of DDJ Morgan MBE in Johnson -v- National Platforms Ltd (a copy of which is available here Johnson v Nationwide Platforms Limited (Final))….
PROVING THINGS 205: COUNSEL NOT ENTITLED TO £6,922,532 IN FEES BUT WERE ENTITLED TO EXEMPLARY DAMAGES
In Cakebread & Anor v Fitzwilliam [2021] EWHC 472 (Comm) Sir Ross Cranston (sitting as a High Court judge) considered an argument from the claimant barristers that an arbitrator had erred in refusing to award them their fees. The essential…
PROVING THINGS 203: EVIDENCE AND SCOTT SCHEDULES IN COERCIVE CONTROL CASES: SCOTT SCHEDULES “INEFFECTIVE AND FREQUENTLY UNSUITABLE”
In F v M [2021] EWFC 4 Mr Justice Hayden considered issues relating to fact finding in a case of “coercive control”. Although the difficulties here are in the context of a family case, the issues will have some relevance…
PROVING THINGS 201: THE WHITE LION HOTEL CASE AND PROVING BREACH OF DUTY BY AN OCCUPIER
In the judgment in The White Lion Hotel (A Partnership) v James [2021] EWCA Civ 31 the Court of Appeal set out some importance principles in relation to claims based on the Occupiers’ Liability Act 1957. The court upheld a…
PROVING THINGS 200: ALL THE SERIES IN ONE PLACE: THE (VERY) EXPENSIVE COSTS OF FAILING TO THINK FULLY ABOUT EVIDENCE
There are now 200 posts in the “Proving Things” Series. These centre, usually, on a failure to establish matters at trial. Sometimes the failures are dramatic. In Marathon Asset Management LLP -v- Seddon [2017] EWHC 300 (Comm) i the claimants had…
PROVING THINGS 199: “THE BITTER TRUTH”: INNOCENT PARTIES MAY SUFFER NO LOSSES – AND RECEIVE NO DAMAGES
The judgment of Mr Stephen Houseman QC sitting as a Deputy High Court judge in YJB Port Ltd v M&A Pharmachem Ltd & Anor [2021] EWHC 42 (Ch) is another example of a party failing to prove it had suffered…
PROVING THINGS 196: PROVING THAT FILES WERE (OR WERE NOT) DELIVERED IS MORE TRICKY THAN YOU MIGHT THINK
The judgment of Master Clark in The Law Society of England and Wales (Solicitors Regulation Authority) v Sophie Khan & Co Ltd [2021] EWHC 2 (ChD) highlights the difficulties involved in proving, or disproving, that a document was delivered. In…
PROVING THINGS 193: THE POSSIBILITY OF THE DECEASED PERSON HAVING INCREASED EARNINGS AND “LOSS OF CHANCE” CONSIDERED IN A FATAL CASE
In many ways the judgment Young v Downey [2020] EWHC 3457 (QB) is an extraordinary case, involving a terrorist killing taking place in 1982. On the other hand it shows a principle of general application in the assessment of fatal…
PROVING THINGS 192: WHEN A WITNESS GIVES EVIDENCE OF MATTERS THAT TOOK PLACE 50 YEARS AGO: HOW THE JUDGE WEIGHS THE EVIDENCE
In Pinnegar v Kellogg International Corporation & Anor [2020] EWHC 3431 (QB) HHJ Platts (sitting as a High Court judge) considered the weight to be given to evidence of matters that had happened some 50 years previously. It shows that…
PROVING THINGS 191: PROVING LOSS OF EARNINGS (III): CLAIMING AND PROVING “FRINGE BENEFITS”.
Some jobs have “fringe benefits” which provide an important part of the employee’s overall remuneration. There are many examples of these benefits being claimed as damages. Here we look at some cases where the courts have considered the issue of…
PROVING THINGS 191: PROVING LOSS OF EARNINGS (II): A CLIENT QUESTIONNAIRE
Here we return to the basic issue of proving loss of income. This often applies in personal injury action, but is an issue that can arise in several other types of litigation. We have a questionnaire on the single issue…
PROVING THINGS 190: PROVING LOSS OF EARNINGS (1) : THE IMPORTANCE OF THE WITNESS STATEMENT: THE QUESTIONS YOU SHOULD ASK
The basic task of proving damages, particularly elements such as loss of earnings and disability in the labour market, are often overlooked in witness statements prepared for trial, both in personal injury actions and other actions were loss of income…
PROVING THINGS 189: IF YOU WANT TO PROVE THE DEPTH OF SOMETHING – TAKE A RULER (OH, AND PHOTOGRAPHS)
In Nash v Hertfordshire County Council [2020] EWHC 3247 (QB) HHJ Lickley QC, sitting as judge of the High Court, dismissed the claimant’s claim for damages. There were numerous witnesses and expert involved. “They took photographs when they were at…
PROVING THINGS 188: PROVING A WARNING WOULD HAVE MADE A DIFFERENCE: PEDESTRIAN HIT BY CRICKET BALL LOSES CASE ON APPEAL
In Lewis v Wandsworth London Borough Council [2020] EWHC 3205 (QB) Mr Justice Stewart overturned a decision in favour of claimant who had been struck by a cricket ball whilst walking near a cricket pitch. “… the defendant was…