UK Court of Appeal
Medical negligence litigation is unlike litigation generally. The cases throw up arguments about causation the like of which do not appear elsewhere.
For the Plaintiff, “fighting” did not require him to give evidence; the case was run purely on legal arguments. Although the judgement of the three-judge Court of Appeal was unanimous in his favour, the legal arguments were sufficiently cogent to defeat him in first instance (and to have attracted the Defendants’ lawyers to the course of action they took, in the first instance).
So, the accused is in a position where i) he is not obliged to say anything; ii) his solicitor’s advice is secret (privileged); and iii) he is menaced with an adverse inference if he remains silent.
It happened in 1932, in Donoghue v Stevenson  AC 562. The defence in the case relied on the fact that the Plaintiff had no privity of contract with the Defendant. She, the Plaintiff had consumed some of the contents of a bottle of ginger beer. She discovered what she perceived as the remains of a decomposing snail in the bottom of the bottle and became ill as a consequence. She had been given the beer by the purchaser.
Matters were in each case made more difficult by the decision of the court of appeal in concluding that, while the judgments were deficient, it was possible to discover what the reasons for the judgment were in each case. Consequently, the appellants although aggrieved at the absence of reasons in the original judgments did not win on appeal and lost more money on legal costs.
The council applied for an injunction to effect entry for the replacement contractor. Mowlem, in resisting the application, claimed that the only loss accruing to the council was a loss of time and that was capable of being remedied under the terms of the contract, which fixed liquidated damages for the delay