It may seem obvious but if you are to embark on the risky business of litigation, you must get the basics right. One basic requirement when going to trial is to have the evidence to prove your claim. There have been several recent cases that highlight the obvious point that if you are seeking damages, then you must have evidence to prove your loss! The Judge in the recent case of Khan v Stockton-On-Tees Borough Council [2017] UKUT 432 (LC) was particularly unimpressed by the lack of any evidence to prove the damages claim. The applicant made a claim for loss of rental income on a property that had been derelict for some time. The Judge stated:
“There is no evidence that, after a long period of the property lying empty, the claimant had decided to refurbish it and would have done so had it not been for the scheme. Secondly, the details of the claim were entirely speculative. There was no evidence in support of the rental income level (whichever it was), or choice of deduction for management costs and voids. I make no award of loss of rent in this claim.”
This problem is an issue that a litigator faces when a client, for example, gets very excited by the other party’s breach of contract and starts to see pounds signs. This will often cloud the fundamental requirement to produce sufficient evidence to prove the loss. Some litigants think that if they assert a claim that is very is enormous, that will make their opponent cave in. It may be thought that this a problem confined to unrepresented litigants, but even some lawyers get caught in the trap of starting proceedings without having any evidence of the loss being claimed.
Before stepping onto the litigation train, which only goes in one direction towards increasing costs, always ask yourself some basics questions:
1. Do you have a cause of action? (Do you have some ground in law, eg. breach of a contract, for holding the other party responsible?)
2. Do you have evidence to prove your cause of action, for example, if you are claiming damages from a builder for not completing the work to a satisfactory standard, do you have evidence that it was shoddy work?
3. Can you prove that you have suffered the losses being claim? So if you had to spend £X amount to rectify the defects in the building work, ensure you have the documentation of what the new contractors did and what you paid them.
There are many forms of evidence; it can be physical objects, documentation or the oral testimony of witnesses. Oral evidence from witness can on its own be sufficient to prove your case. However, there is a much better chance of convincing the judge to find in your favour if that oral evidence is backed by contemporaneous documents, or at least documents that were created shortly after the event. A case that rests entirely on the oral evidence will always be difficult to predict because it will be a case of who the judge prefers.
It is never wise to you play a game of hoping something will emerge during the court of the proceedings. So before litigating, always be objective and consider what actual evidence you have and what you are able to prove.
