The second defendant appealed against the level of damages awarded against him after he was found guilty of a fraud on the claimant, saying that the loss of profits element was unproven.
Held: The appeal failed. Where a claimant’s investment fund was reduced by the defendant’s fraud, the losses were to be taken to include not just the reduction in the sum invested and the profits which would have accrued, but also the loss of those profits that would have would have been made from investment of the lost money between the discovery of the fraud and the trial date.
Toulson LJ said: ‘Some claims for consequential loss are capable of being established with precision (for example, expenses incurred prior to the date of trial). Other forms of consequential loss are not capable of similarly precise calculation because they involve the attempted measurement of things which would or might have happened (or might not have happened) but for the defendant’s wrongful conduct, as distinct from things which have happened. In such a situation the law does not require a claimant to perform the impossible, nor does it apply the balance of probability test to the measurement of the loss.’
Mummery LJ, Toulson LJ, Rimer LJ
[2010] EWCA Civ 486, [2010] WLR (D) 114, [2010] 19 EG 108, [2010] 3 WLR 1266, [2010] Bus LR 1446, [2011] QB 477
Bailii, WLRD
England and Wales
Citing:
Appeal from – Parabola Investments Ltd and Another v Browallia Cal Ltd and Others ComC 6-May-2009
The claimant sought damages alleging deceit by the second defendant in the management of his stock trading activities. . .
Cited – Chaplin v Hicks CA 1911
A woman who was wrongly deprived of the chance of being one of the winners in a beauty competition was awarded damages for loss of a chance. The court did not attempt to decide on balance of probability the hypothetical past event of what would have . .
Cited – Davies v Powell Duffryn Associated Collieries Limited HL 1941
Damages under the Fatal Accidents Acts are calculated having regard to ‘a balance of gains and losses for the injury sustained by the death.
An appellate court should be slow to interfere with a judge’s assessment of damages. Lord Wright . .
Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Cited by:
Cited – Ramzan v Brookwide Ltd ChD 8-Oct-2010
The claimant owned a flying freehold room butting into the defendant’s property. Whilst the claimant’s property was unoccupied, the defendant broke through into the room, blocked off the door to the claimant’s property, and included the room in the . .
Cited – Ramzan v Brookwide Ltd CA 19-Aug-2011
ramzan_brooksideCA2011
The defendant had broken through into a neighbour’s flying freehold room, closed it off, and then included it in its own premises for let. It now appealed against the quantum of damages awarded. The judge had found the actions deliberate and with a . .
Cited – Morris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .
These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.409981
