Simpson v Simpson

In a conversion claim, expert evidence is not legally indispensable to prove diminution in value. A court may assess loss from admissible factual or non-expert evidence, but substantial damages require a reliable evidential basis for the relevant values. An informal estimate, rough business accounts and an unsupported percentage reduction may leave the court unable to calculate loss; it must not speculate.

Where a prior case-management direction has prevented expert evidence, and the trial judge considers that better evidence might support a substantial award, the judge must address the direction’s implications before disposing of quantum by awarding nominal damages. A failure to do so may justify adjourning and remitting the damages issue for further hearing.

The appellant was a defendant in family business proceedings involving claims between members of the family. Her parents retained stock belonging to her business, and the County Court at Preston found that they had wrongfully interfered with the stock.

By an order dated 22 December 2014, His Honour Judge Butler awarded £500 nominal damages. He found that the appellant had shown probable loss but had failed to prove its amount by admissible evidence. The appellant appealed, arguing that the existing evidence supported substantial damages or, alternatively, that the issue of damages should have been adjourned for further determination.

A significant procedural feature was an earlier case-management order stating that no party had permission to call or rely on expert evidence because none was necessary. The central issue was whether the judge had been entitled to conclude the damages issue on the evidence available.

1. Appeal allowed. The award of nominal damages was set aside and the issue of damages was remitted to the County Court for determination.
2. Expert evidence was not indispensable as a matter of principle. A court may determine the value of converted goods from admissible non-expert evidence if that evidence is sufficient to establish the relevant values.
3. The judge was entitled to find that the evidence available did not support a substantial award. The claimant’s email contained only an informal estimate of the stock’s value, the business accounts were based on a rough visual assessment, and the evidence did not establish a reliable value at the date of conversion or on return. The Court of Appeal was in no better position and could not substitute its own figure or speculate.
4. The decision whether to adjourn the damages issue was a case-management decision attracting appellate restraint. However, the judge had to consider the effect of the earlier direction preventing reliance on expert evidence, particularly as the appellant had acted in person. The judge had recognised that a professional inventory or valuation report might provide the basis for a substantial award and that the appellant had shown probable loss.
5. The earlier case-management order was therefore materially relevant. The judge’s failure to address expressly how that order had shaped the evidential position was a fatal flaw in concluding the trial with nominal damages. The proper course was to adjourn quantum for a further hearing.
6. The matter was to return to Judge Butler, who was to give directions for the remaining case. A single joint expert and further factual evidence might be required. The Court of Appeal also sought written submissions on the appropriate costs order concerning the conversion claim.

• Court of Appeal (Civil Division): In [2016] EWCA Civ 1306, the appeal against the nominal damages award was allowed. The damages award was set aside and the issue of quantum was remitted to the County Court.
• County Court at Preston: His Honour Judge Butler’s order of 22 December 2014 awarded £500 nominal damages for wrongful interference with the stock, having found probable loss but insufficient evidence of its amount.