PROVING THINGS 41: PROVING DAMAGES – YOU ARE NOT GETTING A SECOND BITE OF THE CHERRY

There was one part of the argument in Francis -v- Knapper [2016] EWHC 3093 (QB) that justifies closer examination. That is the claimant’s suggestion that the question of damages be put off.  A party struggling to prove damages at trial is likely to struggle in an application to have the issue of damages heard later.

THE CLAIMANT’S SUGGESTION

“The evidence as to whether there is any such loss, and if so its amount, is very unsatisfactory. That was in truth conceded by Mr Seitler QC for Mr and Mrs Francis, whose primary submission in the circumstances was that if the Park Representations claim succeeded, I should give judgment for damages to be assessed and directions for a separate assessment of damages.”

That suggestion was rejected by the judge who found that the claimants had failed to prove any loss.

A ROBUST REJECTION OF AN APPLICATION (AT TRIAL) FOR DAMAGES TO BE ASSESSED LATER

The idea that, because the defendant was having difficulty in proving damages, an assessment should take place later, was robustly rejected by Mr Justice Norris in Odone -v- Hawardan Services Ltd [2014]  EWHC 1694 (Ch).

The claimant was bringing an action for damages for breach of bailment.

  1. Counsel for Shannon Odone asked that these matters be put off for enquiry once questions of liability had been addressed. I refuse that application. This was the trial of the action. I bear in mind that it came before me on transfer from another venue because another judge felt (at the last minute) unable to take it, that the parties had already suffered the inconvenience of an earlier adjournment, and that the trial was squeezed into what time was available. But it was the scheduled trial. HAS and Caroline Craft came to meet to entire case pleaded against them. It would be most unfair to put them to the worry and expense of a further trial (and absorb resources that could be made available to other litigants) simply because Shannon Odone had not put her evidence in order before trial.
  2. The value of the spares converted by HAS and Mr Middleton is established by the sale price achieved by Mark Petrie: that is £7500. That is the only properly grounded finding that can be made. The more expensive process of taking an account would (on the material I have) yield the same result: that head of relief was (rightly) not pressed.
  3. I dismiss all other damages claims. Quite apart from questions of causation and remoteness (which were simply not addressed at trial and face apparently insurmountable difficulty) there is simply no reliable evidence by reference to which properly to conduct any assessment.”

    THE PROVING THINGS SERIES

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