The genesis of this article is a tweet earlier today where a solicitor reported that a claim for the cost of hire and storage had been struck out because the witness statement was

C entire hire, storage & recovery claim struck out on basis C failed to quantify loss in loss in w.s’ment”

 A failure to give evidence on a key point of damages can be major problem.  Here we look at some cases and some possible solutions.


We can be certain that the court will be less forgiving in relation to the late service of witness statements.


The case of McRae -v- Chase International Express Ltd [2003] EWCA Civ 505 provides an object lesson in the difficulties that can be caused by inadequate evidence when attempting to prove a claim for damages.

The Facts

Mr. McRae was injured in a motorcycle accident. Liability was not in dispute. As a result of his injuries he had to give up work as a motorcycle courier.  Damages for pain suffering and loss of amenity were agreed at ,20,000. The balance of the claim was disputed.

 The absence of evidence

The defendant appealed aspects of the awards made to the claimant because of the absence or paucity of evidence. The Court of Appeal upheld many of the Defendant’s contentions:-

 1.         Future loss of earnings

Kennedy L.J. observed that, on the question of loss of earnings: “The judge had before him in relation to this issue practically no evidence.” The claimant had answered some questions posed by the Defendant; however no indication was given as to whether the sums mentioned in replies were net or gross or whether there were gaps between employment. The gaps in the evidence were telling:-

 “There was no evidence at all before the district judge as to whether this claimant could now, with his damaged wrist, undertake, for example, any of the jobs he did before joining [the motorcycle courier firm)”

The trial judge concluded that had the claimant been able to go out post-accident and acquire a better paid job he would have do so. Kennedy L.J. observed

… there was simply no evidence before the judge to substantiate that finding. There was no assertion in the pleadings. There was no assertion in the pleadings; there was nothing in the statement filed on behalf of the claimant. When the claimant came to give oral evidence he was not asked about that matter at all.”

 Kennedy L.J. stated that in order to calculate the multiplier/multiplicand basis, “it was necessary for the judge to have before him reliable evidence as to the claimant’s pre-accident earning capacity and as to his post accident earning capacity.”

“The evidence in relation to past earnings was inadequate. There was no evidence as to whether, or when, the claimant would be able to obtain better paid employment.”

The Judge awarded damages for future loss of earnings on a multiplier/multiplicand basis. Kennedy L.J. observed

The claimant here simply had not laid before the court the materials which might well, had they been laid before the court, have enabled the judge to adopt the approach that he did. But the materials were not there. In the absence of those materials it was not appropriate to attempt to use figures which were patently, for the reasons I have endeavored to explain, unreliable.”

 As a result an award of loss of earnings of £41,871.43 was reduced to£ £12,500.

2.      Loss of congenial employment

A similar observation was made in relation to an award for loss of congenial employment. Again the evidence was sparse. There was an assertion in the Particulars of Claim that the claimant found his work as a motor cycle courier satisfying. However nothing was said in the witness statement or when the claimant was in the witness box.  An award of £2,000 under this head was set aside.

3.      The need for the advice on evidence

The kernel of the guidance given by this case is in the short judgment of Mr. Justice Newman. He too was concerned about the way in which the evidence was presented:

If the method and presentation adopted in this case reflects a common circumstances in connection with personal injury cases in the district court it has, in my judgment, departed too far from the basic principle that a claimant must prove his case by evidence capable of supporting the conclusions to which the court is invited to come. It may be that the days of a formal advice on evidence are long gone but the need which such advice fulfil remains. Someone on each side in litigation such as this, with sufficient skill to do so, must, at some timely stage before trial, draw up a list of the issues which remain contentious and then consider whether or not there is evidence available to meet those issues …. There is a need for evidence and there is a need for an analysis of such evidence; then the judge can make findings of fact by drawing inferences and doing the best he can, but on the evidence which is available.”

(We have looked at this statement before in the context of  being ready for trial at the outset of an action).


What is interesting is that the observations made in McCrae are similar to those made nearly 70 years ago in the case of Bonham Carter -v- Hyde Park Hotel Ltd (1948) 64 TLR 177 :

 “Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage, it is not enough to write down the particulars , and , so to speak , throw themselves at the head of the court saying ” This is what I have lost. I ask you to give me these damages. They have to prove it.”


It is remarkable how scarce evidence as to damages can be. I have defended one case where, up to the day before the trial, the claimant had not put forward any evidence at all in relation to the damages claim. Not one document or statement had been put forward. Evidence was (desperately) put in late the afternoon before the trial – when the claimant’s counsel received the brief. After some altercations the claimant non-suited itself on the second day of the trial. (The claimant was a major football club – I resisted all talk of own goals).

Whilst this is an extreme situation it is not rare. In many types of litigation it is easy to become obsessed with issues of liability at the expense of proving damages.  There are a number of issues that have to be addressed:

  •     Proving the damages themselves – ie. that losses have, or will be, sustained.
  •  Proving that the damages flow from the breach (be it negligence or contractual breach).
  •    Proving the amount of the damages.


 We have looked at the (criminally neglected) craft of drafting witness statements many times in this blog.


The answer here is to ensure that the directions give specific permission for the parties to adduce further evidence at a later date. For instance if the medical prognosis is uncertain and progressing. 


 The way to make life easy for yourself is to follow a basic template.  This cannot be too strict and the statement must reflect the realities of the case.

However taking a  claimant’s statement in a personal injury case as an example.

Most personal injury witness statements can fit into a pattern.  If you use sub-headings you can also  make the court’s task easier. So for instance we have:

“1.        How I came to be injured

Describe the facts that led to the injury.

2.         Why the accident was the Defendant’s fault

e.g. I had complained before, or “I saw that the car was speeding”.

3.         The injuries I suffered

The injuries and their effect. There is no need to repeat the medical report. The Claimant cannot give evidence, for instance, as to prognosis.

4.         The financial losses I have suffered

Include the claim for care, transport costs, storage and all other items.

5.         The losses I will suffer in the future

Not only future financial losses but also claims for disability in the labour market, loss of congenial employment, care etc.”

  If we break the statement down in this way it makes it easy for the Court to digest

and helps ensure that you do not overlook crucial matters.


The guidance in Witness Statements and the Genius of John Munkman

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