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…
PROVING THINGS 237: FAILURE TO PROVE A NUISANCE: NO LOSS OF INCOME WHEN YOU WOULD NOT HAVE BEEN ABLE TO EARN IT
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
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
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
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”
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”
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
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
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
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
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 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
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
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
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
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
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
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
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…
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…
PROVING THINGS 187: THE CAMERA MAY LIE: THE IMPORTANCE OF DATES ON PHOTOGRAPHS
Today we are journeying into the Family Court to look at the judgment of Mrs Justice Judd in K v G [2020] EWHC 3209 (Fam). It shows the importance of obtaining metadata in relation to documents. In this case the…
PROVING THINGS 186: WHEN THE ONE WITNESS IN THE CASE HAD LITTLE KNOWLEDGE OF HOW THE FIGURES IN THE SCHEDULE HAD BEEN REACHED – THERE IS TROUBLE AHEAD…
In Crazy Bear Group Ltd v Patel & Anor [2020] EWHC 3023 (Ch) Insolvency and Companies Court Judge Jones (sitting as a Judge of the High Court) considered whether defendants in an action had proven that they had suffered damages…
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