PROVING THINGS 185: SAYING “I’M BROKE” DOES NOT PROVE IMPECUNIOSITY: “THE DEFENDANT IS ENTITLED TO KNOW THE CASE THEY HAVE TO MEET”
We are returning again to the Court of Appeal decision in Diriye v Bojaj & Anor [2020] EWCA Civ 1400. This time concentrating upon the Court’s comments in relation to the need to prove impecuniosity and the claimant’s failure to…
PROVING THINGS 182: FAILING TO PROVE A CONTRACT WAS SIGNED AND GETTING DAMAGES OF £1: NOT A GREAT RESULT FOR A CLAIMANT
The judgment of JJH Melissa Clarke, sitting as a High Court Judge, in DPA (London) Ltd v D’Aguanno & Ors [2020] EWHC 2374 (IPEC) is a classic example of failing to prove key matters in a claim. Firstly the claimant…
PROVING THINGS 180: ACCEPTING A LIFT WITH A DRUNKEN DRIVER, WHILST DRUNK: DEFENDANT FAILS TO ESTABLISH THAT FAILING TO WEAR A SEAT BELT MADE A DIFFERENCE
The judgment today of HHJ Robinson (sitting as a judge of the High Court) in Campbell v Advantage Insurance Company Ltd [2020] EWHC 2210 (QB) makes interesting reading. 1. A claimant cannot properly argue that he was too drunk himself…
PROVING THINGS 179: SECRETARY OF STATE’S “SUPERFICIAL INVESTIGATION” FAILS TO PROVE THAT DEFENDANT WAS A DE FACTO DIRECTOR
In the judgment given today in Secretary of State for Business, Energy And Industrial Strategy v Rahman [2020] EWHC 2213 (Ch) HHJ Paul Matthews found that the Secretary of State had failed to prove that the defendant had ever been…
PROVING THINGS 178: PROVING PREJUDICE: THE NEED FOR SPECIFIC EVIDENCE
There is another aspect of the Court of Appeal decision in Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015 that justifies closer examination. That is the court’s observations on the judge’s finding of prejudice. The Court of Appeal…
CIVIL PROCEDURE BACK TO BASICS 78: NO DUTY ON AN INJURED CLAIMANT TO USE THE NATIONAL HEALTH SERVICE
This post is due to a tweet someone copied me in on this morning. The issue was, ostensibly, one of general damages in a personal injury case. An insurer was refusing to pay the costs of private treatment – stating…
COVID REPEATS 28: GOING BACK TO COLLEGE: THE NEED TO PROVE DAMAGES
Today we are going back to the general theme of a failure to prove damages. One harsh shock for many litigants occurs when they are asked to prove their damages at trial. We have looked several times when a litigant…
PROVING THINGS 176: RELYING ON MEMORY FROM EVENTS A LONG TIME BACK
I am grateful to David Platt QC for sending me a copy of the judgment given today of Geoffrey Tattersall QC (sitting as a Deputy High Court Judge) in Bannister -v- Freemans Public Limited Company [2020] EWHC 1256 (QB). …
COVID REPEATS 26: YOU HAVE TO PROVE YOU HAVE SUFFERED DAMAGES: FOOTBALL CLUB PITCHES THEIR CASE TOO HIGHLY
The next few posts in this series are going to highlight those cases where parties simply failed to prove things at trial (and there are quite a few of these). Today we are looking at the Court of Appeal decision…
COVID REPEATS 24: THE CLAIMANT THAT CLAIMED £15 MILLION, TURNED DOWN £1.5 MILLION AND RECEIVED £2.00 (YES TWO WHOLE POUNDS)
The “Proving Things” series has been a part of this blog for several years now. Many of the posts highlight those cases (and there does not seem to be any end to them) where a party simply has no evidence…
PROVING THINGS 175: WHEN THE TRIAL JUDGE IS ASKED TO CONSIDER THE QUALITY OF CUDDLY TOYS IN COURT: CPR 33.6 AND ITS SIGNIFICANCE
There is an interesting reminder of the provisions of CPR 33.6 in the judgment of HHJ Russen QC (sitting as a High Court Judge) in Dowman Imports Ltd v 2 Toobz Ltd (Rev 1) [2020] EWHC 291 (Comm). The judge…
PROVING THINGS 174: ILLEGALITY, THE VAN DRIVER AND THE MOT CERTIFICATE: CLAIMANT STILL ENTITLED TO DAMAGES
I am grateful to Liam Davidson, from Winns Solicitors for sending me a copy of the judgment of HHJ Freedman in Jack -v- Borys (Newcastle upon Tyne 20th December 2019). It relates to damages and illegality. Jack-v-Borys-2019 (1) “I think…
PROVING THINGS 173: FAILING TO PROVE ANY KIND OF PAST OR FUTURE LOSS OF EARNINGS: A BLAMIRE AWARD IS NOT A SUBSTITUTE FOR EVIDENCE
There is another aspect of the judgment of Mr Justice Chamberlain in BXB v Watch Tower And Bible Tract Society of Pennsylvannia & Anor [2020] EWHC 156 (QB) that merits attention. Th claimant sought damage for loss of earnings but these…
PROVING THINGS 172: SPECULATION BY THE DEFENDANT IS NOT EVIDENCE: A CLINICAL NEGLIGENCE CASE
The judgment of Mr Justice Turner in Morrison v Liverpool Women’s NHS Foundation Trust [2020] EWHC 91 (QB) is another illustration of a party asserting something but having no evidence to support it. This time it was a defendant whose…
PROVING THINGS 171: A TALE OF TWO TELEVISION PRESENTERS (AND OF A CASE WHERE THERE WAS NO EVIDENCE AT ALL ON VITAL ISSUES)
The judgment of the Employment Tribunal in the case of Ahmed -v- BBC (10th January 2019) has already received wide publicity. It is worthwhile looking at the paucity, often the total absence of evidence, on many key issues on the…
CIVIL PROCEDURE AND COSTS: BLOG AND ARTICLES ROUND UP – NOVEMBER 2019
Here we have links to blogs and articles about civil procedure and costs from November 2019. COSTS Costs Barrister Blaming others Costs Barrister The undiscovered country Herbert Smith Freehills Court of Appeal confirms jurisdiction to award claimant interim payment on account of costs…
PROVING THINGS 169: WHEN THE DEFENDANT CALLS NO (LAY) EVIDENCE AND TRIES TO PROVE ITS CASE THROUGH THE CLAIMANT’S WITNESSES
There are a number of interesting aspects of the judgment of HHJ Coe in Esegbona v King’s College Hospital NHS Foundation Trust (false imprisonment in hospital) [2019] EWHC 77 (QB). One of which is the defendant’s failure to call any…
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 167: BUNDLES, EXPERTS, ABSENT WITNESS, UNPLEADED DEFENCES AND… SEWAGE: ALL MODERN LITIGATION IS HERE…
The judgment of HHJ Russen (QC) (sitting as a High Court Judge) in Kivells Ltd v Torridge District Council [2019] EWHC 2846 (TCC), contains a number of interesting scenarios in relation to civil evidence. Many of the common problems of…
PROVING THINGS 166: LYING IN COURT (& HOW THE JUDGE DECIDES WHO IS…)
A search term led someone to this blog today “how is it legal to get away with lying in court”. There is a whole host of material on the question of what is a “lie”, compared to a false or…
PROVING THINGS 165: CLAIMANT IN CLINICAL NEGLIGENCE CASE PROVES NEGLIGENCE BUT FAILS TO ESTABLISH CAUSATION
In Bell v Bedford Hospital NHS Trust [2019] EWHC 2704 (QB) the claimant established clinical negligence but failed to prove causation. THE CASE The claimant suffered a major stroke that left her with significant permanent disabilities. She claimed that…
PROVING THINGS 163: PROVING MITIGATION OF LOSS: A CLAIMANT NEED NOT TAKE THE RISK OF STARTING UNCERTAIN LITIGATION AGAINST A THIRD PARTY
The need for a defendant to prove a failure to mitigate is something that has been covered before on this blog. In Natixis SA v Marex Financial & Ors [2019] EWHC 2549 (Comm) Mr Justice Bryan considered the legal principles. …
PROVING THINGS 162: WHEN THE GOVERNMENT DOESN’T HAVE THE COMMONS TOUCH
Constitutional lawyers will be writing about the Supreme Court decision today for decades to come. However I want to look at the more basic issue of the evidence that was placed before the courts. This was not a case…
PROVING THINGS 161: DOCUMENTS BEING DELIBERATELY DESTROYED AND EXPERTS WHO WERE OF VERY LIMITED ASSISTANCE
The judgment in Bajaj Healthcare Ltd v Fine Organics Ltd [2019] EWHC 2316 (Ch) is in what could appear to be a fairly dry dispute about the supply of goods. As the judge observed this was not a simple sale…
NOT GIVING SOURCES OF INFORMATION AND BELIEF WHEN A SOLICITOR FILES A WITNESS STATEMENT: A PROBLEM BREAKING OUT ALL OVER
A post yesterday commented on the dangers of a solicitor (or indeed anyone) making a witness statement without giving the sources of their information and belief. An identical issue arose in the judgment of Deputy Master Linwood in Islestarr Holdings…
PROVING THINGS 159: A FORMULAIC APPROACH TO EVIDENCE WHICH LEADS TO CONFIRMATION BIAS: THE DANGERS OF PRO FORMA EVIDENCE GATHERING
This blog has looked, several times, at the way in which the family courts look at both expert and lay witness evidence. The judgments of the family courts contain many examples of issues that arise throughout civil litigation. We see…
PROVING THINGS 158: NOW – WHY WOULDN’T BANKS WANT TO REVEAL DETAILS OF THE BONUSES THEY PAID?
The judgment in Credit Suisse Securities (Europe) Ltd & Ors v HM Revenue and Customs [2019] EWHC 1922 (Ch) demonstrates a strange position on the part of the claimant bank. The claimant banks did not adduce any evidence to prove…
PROVING THINGS 156: MEDICAL EXPERTS, CAUSATION, CLINICAL NEGLIGENCE, ABSENT EVIDENCE
In ZZZ v Yeovil District Hospital NHS Foundation Trust [2019] EWHC 1642 (QB) Mr Justice Garnham found that there had been a breach of duty by the defendant hospital, but those breaches had no causal relevance. The case is interesting for…
CIVIL PROCEDURE BACK TO BASICS 50: THE POSTS SO FAR
The “back to basics” series has been going since April 2018. It has covered a surprising amount of topics. From how to draft an application to “litigation wishful thinking”. Some people have expressed surprise and how “basic” some points are…
PROVING THINGS 155: WITNESS EVIDENCE THAT GOES WRONG: HOTEL PROPRIETOR NOT LIABLE TO GUEST FOR ASSAULT BY TRESPASSER
In Al-Najar & Ors v The Cumberland Hotel (London) Ltd [2019] EWHC 1593 (QB) Mr Justice Dingemans found that proprietors of a hotel had not been in breach of duty when some of their guests had been assaulted by a…
PROVING THINGS 154: CLOSE CONNECTION IN TIME DOES NOT ESTABLISH CAUSATION IN A CLINICAL NEGLIGENCE CASE: EXPERTS STRAYING BEYOND THEIR AREA OF EXPERTISE
In AXO v Salisbury NHS Foundation Trust [2019] EWHC 1454 (QB) Mrs Justice YIP considered the issue of causation in a clinical negligence case. Liability was admitted but the claimant failed to establish causation. THE CASE The claimant child was…
PROVING THINGS 151: DEPENDENCY IN A FATAL ACCIDENT ACT CLAIM: ADULT CHILD DEPENDANTS RECEIVE DAMAGES FOR FUTURE CONTRIBUTIONS TO WEDDINGS AND TOWARDS THEIR FIRST HOME
In AB v KL [2019] EWHC 611 (QB) David Edwards QC (sitting as a judge of the High Court) considered the nature of the evidence needed to establish damages under the Fatal Accidents Act 1976. It is also important both…
PROVING THINGS 150: CLAIMANT FAILS TO ESTABLISH THAT THE MOVE FROM LEGAL AID TO CONDITIONAL FEE AGREEMENT WAS A REASONABLE STEP
In YZ v Gloucestershire Hospitals NHS Foundation Trust [2019] EWHC B4 (Costs) Master Gordon-Saker found that the claimant had not established good grounds for changing from legal aid to a conditional fee agreement. Although this is a costs issue, it…
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…
BREACH OF REGULATIONS IS IPSO FACTO NEGLIGENT: HIGH COURT JUDGMENT ON s.69 OF THE ERRA
I am grateful to Colm Nugent for sending me a copy of the judgment of HH Gore QC (sitting as a High Court judge) in Tonkins -v- Tapp (7th December 2018). The judgment deals with the issue of the relevance…
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 145: WHEN EXPERTS ARE OF NO HELP AT ALL: IT IS THE FACTS THAT WON IT
I am giving a seminar on “Expert Witnesses and Liability” at the APIL Annual Conference in May. The judgment of HHJ McKenna (sitting as a High Court judge) in Al-Iqra & Ors v DSG Retail Ltd [2019] EWHC 429 (QB) gives…
PROVING THINGS 144: THAT TEMPTATION TO PUT MATTERS IN THE SKELETON THAT AREN’T ESTABLISHED BY THE EVIDENCE: ALSO – THE POWER OF LISTS
We have looked before at attempts to use a skeleton argument to introduce evidence (often made in desperation to be fair). An example of this can be seen in a short passage in the judgment in Schettini v Silvestri & Ors…
PROVING THINGS 143: THE COURTS DON’T REALLY APPRECIATE EVIDENCE COMING FROM THE NEWS RATHER THAN THE PARTIES: (SHIPS, I SEE NO SHIPS)
In The Channel Tunnel Group Ltd & Anor (t/a “Eurotunnel”) v Secretary of State for Transport [2019] EWHC 419 (TCC) Mr Justice Fraser expressed concern that witness statements served by the Secretary of State in a civil action were almost immediately…
PROVING THINGS 142: CLAIMANT HAS TO PROVE SIZE OF HIGHWAY DEFECT: PHOTOGRAPHS THAT WERE “ALMOST COMPLETELY USELESS”
The judgment today in Walsh v The Council of the Borough of Kirklees [2019] EWHC 492 (QB) contains an important message for anyone involved in highway or “tripper” litigation: the claimant has to have evidence to prove the size of the…
WITNESS EVIDENCE: GRAPPLE WITH THOSE DIFFICULTIES: KNOW WHETHER YOU CAN PROVE YOUR CASE: OTHERWISE IT IS GOING TO COST YOU (ALSO THE IMPORTANCE OF AN OFFER)
The previous post looked at the witness evidence of some of the claimants against one of the defendants in the case of Zagora Management Ltd & Ors v Zurich Insurance Plc & Ors [2019] EWHC 140 (TCC). Here we look at 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…
THE ABSENCE OF KEY DOCUMENTS CANNOT BE EASILY IGNORED: CLAIMANT SHOULD HAVE BEEN SUCCESSFUL: JUDGMENT FOR DEFENDANT OVERTURNED ON APPEAL
In Mackenzie v Alcoa Manufacturing (GB) Ltd [2019] EWHC 149 (QB) Mr Justice Garnham overturned a judgment in favour of a defendant. The defendant’s failure to produce key documents, or give any explanation for their not being available, was a major…
PROVING THINGS 139: WHEN THE JUDGE HAS TO DECIDE WHETHER ITS ALL BEEN A BIT OF A CRUSH
Most of the cases looked at in this series are decisions in the High Court. However issues of witness credibility and accuracy are a constant issue throughout virtually every layer of court and tribunal. In Prosser v British Airways Plc [2018]…
PROVING THINGS 138 : A WHOPPER OF AN OMISSION: McDONALD’S FAILS TO PROVE TRADEMARK RIGHTS TO “BIG MAC”: ADEQUATE EVIDENCE WAS NOT ON THE MENU
I am grateful to Yisroel for pointing out the decision of the European Union Intellectual Property Office in the “Big Mac” case. It is not my usual reading. However Yisroel points out that McDonald’s failed because of a basic failure…
PROVING THINGS 137: PROVING A DEFENCE TO A COUNTERCLAIM: NO EVIDENCE TO PROVE MATTERS – THEN JUDGMENT IS GOING TO BE ENTERED AGAINST YOU
The judgment in UK Dry Risers Ltd v Maher [2019] EWHC 44 (QB) shows the importance of being able to prove a defence to a counterclaim. The claimant succeeded on a claim for £3,690.72, the defendant obtained a judgment for £13,628.00. …
PROVING THINGS 136: THE IMPORTANCE OF CROSS-EXAMINATION – YET AGAIN: FAILURE TO CROSS-EXAMINE RESPONDENT LEADS TO FINDINGS BEING SET ASIDE
For the second time in a week I am reporting on the importance of cross-examination, albeit from a slightly different angle. The importance of putting the case to a witness arises clearly and squarely in the judgment of Mr Justice…
CROSS-EXAMINATION: THE DUTY TO PUT A CASE: A GEM OF A DECISION
In W Nagel (A Firm) v Pluczenik Diamond Company NV [2018] EWCA Civ 2640 the Court of Appeal made an important observation about the duty of a cross-examiner to put their client’s case to an opposing witness. This provides an opportunity…
PROVING THINGS 134: WINNING A FEW BATTLES BUT LOSING THE WAR: ALL IS NOT ROSY IN THESE CLAIMANTS’ GARDEN
Law students have probably already been taught, and will be lectured for generations to come, about the implications of the Court of Appeal decision in Lejonvarn v Burgess & Anor [2017] EWCA Civ 254. If any of those law students plan…
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…
You must be logged in to post a comment.