PROVING THINGS BY EVIDENCE: SUCH A QUAINT, OLD FASHIONED CONCEPT

The judgment of the Court of Appeal in One Money Mail Ltd -v- RIA Financial Services [2015] EWCA Civ 1084 highlights a surprisingly common theme in many judgments. A party wants damages but has simply failed to adduce the evidence to prove any losses.

“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 lost 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.”

THE CASE

The Court of Appeal overturned a decision that the defendants were in breach of a restrictive covenant clause.  The trial judge had also stated that she would not award damages because of the lack of evidence.

THE COURT OF APPEAL JUDGMENT ON THE QUESTION OF DAMAGES

“Damages?
  1. The judge said that the evidence before her did not enable her to perform any kind of calculation of the loss which may have been suffered by OMM. If she had found in OMM’s favour she would not therefore have awarded any damages against either Ria or Mr Wasilewski. OMM has not been permitted to appeal that conclusion. It was, however, granted permission to appeal on the question whether it could have equitable damages in lieu of an injunction calculated by reference to the gain made both by Mr Wasilewski and by Ria and obtained by reason of Mr Wasilewski’s breach of contract with OMM.
  2. The difficulty about this is that there was no evidence which would have enabled the judge to calculate that gain any more than there was evidence of the loss suffered by OMM. Mr Davies for OMM submitted that this was because Ria never gave any disclosure to show what it had earned and that the matter should be remitted to the judge for disclosure to be given and a decision on damages. But Ria was never asked to make the relevant disclosure, and was not under a general disclosure obligation. The directions given earlier limited Ria to making specific disclosure only. The parties attended what was intended to be a single trial of all issues and it would be disproportionate for OMM now to have what would, in effect, be a second bite at the cherry.”

THE RESULT

It was held that there was a breach of contract. However there was no evidence of any loss.

  1. I would uphold the judge’s finding that Ria unlawfully procured a breach of Mr Wasilewski’s contract with OMM, and enter judgment for OMM on that basis; but since OMM cannot quantify their loss I would do no more.”

HARDLY A NEW ISSUE

There are many examples. The most well known is 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 CASE

This involved an appeal by the defendant of an award of damages on the grounds that the claimant had produced inadequate evidence at trial to establish a claim for loss of earnings      The Court of Appeal upheld many of the defendant’s contentions and was scathing of the absence of evidence on crucial elements of the loss of earnings claim.

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. observed 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 tohis 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.

NO EVIDENCE IN RELATION TO FUTURE LOSSES

The trial 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 endeavoured to explain, unreliable.”

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

NO EVIDENCE OF LOSS OF CONGENIAL EMPLOYMENT

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.

THE NEED TO CONSIDER EVIDENCE AT AN EARLIER STAGE

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 lost 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.”

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