Inquiry as to damages – allegations of passing off and unlawful interference.
Citations:
[2014] EWHC 2836 (IPEC)
Links:
Jurisdiction:
England and Wales
Intellectual Property, Damages
Updated: 26 November 2022; Ref: scu.536026
Inquiry as to damages – allegations of passing off and unlawful interference.
[2014] EWHC 2836 (IPEC)
England and Wales
Updated: 26 November 2022; Ref: scu.536026
[2007] EWCA Civ 1181
England and Wales
Updated: 26 November 2022; Ref: scu.264471
EAT Four employees successfully established before the Employment Tribunal that they had been unfairly dismissed for redundancy. The Tribunal found that there had been procedural defects. In particular the assessments in the redundancy exercise had been inadequate and subjective. The Tribunal considered whether the dismissals were fair under section 98A(2) of the Employment Rights Act 1996, or whether a Polkey reduction should apply. They appear to have concluded that there was no reliable evidence to find either.
Held: The Tribunal were entitled to find that the dismissals had not been shown to be fair by virtue of s.98A(2), but that there was evidence which they ought to have considered in order to decide whether, and to what extent, a Polkey reduction was appropriate. Case law on the application of Polkey considered and certain principles summarised.
The Article 130(4) ‘exercise of determining whether the employer has shown that the employee would have been dismissed if a fair procedure had been followed, and the assessment of whether, instead, the dismissal is unfair but subject to a Polkey reduction, are exercises which run in parallel.’
Elias J set out the principles: ‘(1) In assessing compensation the task of the tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.
(2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to reply. However, the tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (He might, for example, have given evidence that he had intended to retire in the near future).
(3) However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.
(4) Whether that is the position is a matter of impression and judgment for the tribunal. But in reaching that decision the tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.
(5) An appellate court must be wary about interfering with the tribunal’s assessment that the exercise is too speculative. However, it must interfere if the tribunal has not directed itself properly and has taken too narrow a view of its role.
(6) The s.98A(2) and Polkey exercises run in parallel and will often involve consideration of the same evidence, but they must not be conflated. It follows that even if a tribunal considers some of the evidence or potential evidence to be too speculative to form any sensible view as to whether dismissal would have occurred on the balance of probabilities, it must nevertheless take into account any evidence on which it considers it can properly rely and from which it could in principle conclude that the employment may have come to an end when it did, or alternatively would not have continued indefinitely.’
The Honourable Mr Justice Elias (President)
[2007] UKEAT 0533 – 06 – 2601, UKEAT/0533/06, [2007] IRLR 568, [2007] ICR 825
Employment Rights Act 1996 98A 123
England and Wales
Cited – James Cook and Co (Wivenhoe) Ltd v Tipper CA 1990
A number of shipyard workers were dismissed by their employers but believed credibly that there was a realistic prospect that they might be re-employed. Only later did it come to their knowledge that the shipyard at which they worked was to close . .
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Mentioned – British Labour Pump Co Ltd v Byrne EAT 1979
The respondent had been dismissed for misconduct on the morning of the day on which he was dismissed. There had been previous misbehaviour but the industrial tribunal held that the case had to be determined on the basis of what had happened on that . .
Cited – King v Eaton Ltd (No 2) IHCS 1998
Employees were made redundant. The tribunal held the dismissals to be unfair because that there had been no consultation worthy of the name with any of the employees and because it was impossible to decide whether the selection criteria had been . .
Cited – Kelly-Madden v Manor Surgery EAT 19-Oct-2006
EAT The employee was the practice manager at a general medical practice. She was dismissed for dishonesty, taking unauthorised pay for overtime hours. She alleged that she had been told by the former practice . .
Cited – O’Donoghue v Redcar and Cleveland Borough Council CA 17-May-2001
The Tribunal had been entitled to find on the evidence that an employee unfairly dismissed by reason of sex would have been fairly dismissed for misconduct six months later in any event because of her antagonistic and intransigent attitude. The . .
Cited – Moeliker v Reyrolle and Co Ltd CA 1976
The court considered the principles for the award of damages for future loss of earning capacity.
Held: The court distinguished between an award for loss of earnings and compensation for loss of earning capacity. The latter head of damage . .
Cited – Scope v Thornett CA 27-Nov-2006
The employee was an engineer. She worked on field assessments and in the manufacture and adaptation of equipment. She was suspended for alleged bullying and harassment and given a final written warning. It was proposed that she should be relocated . .
Cited – Gover and others v Propertycare Ltd CA 28-Mar-2006
The claimants appealed dismissal of their claims for unfair dismissal, on the basis that they had been substantially dismissed as sales agents after rejecting conditions imposed unilaterally by their employers. Their damages had been limited to the . .
Cited – Lambe v 186K Ltd CA 29-Jul-2004
The claimant had been dismissed for redundancy, but the company had been found not to have consulted him properly, and he had therefore been unfairly dismissed. The tribunal had then found that even if consulted the result would not have been . .
Cited – O’Dea v ISC Chemicals Ltd CA 4-Aug-1995
Where the performance of union duties stopped a worker from doing the job he was employed for properly, a redundancy selection was possible. Here there was no redundancy comparator for a shop steward spending half his time on union activities. The . .
Cited – Carole Thornett v Scope EAT 7-Feb-2006
EAT Unfair Dismissal: Compensation
Compensation for unfair dismissal was capped at 6 months’ forward losses on the ground that the Claimant would have been dismissed at that stage. Since the parties could . .
Cited – Loosley v Social Action for Health EAT 15-Feb-2007
EAT Practice and Procedure – 2002 Act and Pre-action Requirements,br />Unfair Dismissal – Reasonableness of dismissal; Polkey deduction,br />Employee due to be dismissed for redundancy unfairly not told of an . .
Cited – Archer v Department for Constitutional Affairs EAT 16-Feb-2007
EAT Unfair dismissal – Reason for dismissal including substantial other reason
Race discrimination – Indirect
Appellant was dismissed by the Respondent, who should have first obtained the approval of the . .
Cited – CEX Ltd v Lewis EAT 10-Aug-2007
UNFAIR DISMISSAL
Polkey deduction
Appeal
The Tribunal found that the employee had been unfairly dismissed under Section 98A(1) and Section 98(4) of ERA. They then found that if proper procedures had been followed, the Claimant would . .
Cited – Butler v GR Carr (Essex) Ltd EAT 15-Oct-2007
EAT Practice and Procedure – 2002 Act and pre-action requirements
Unfair dismissal – Reason for dismissal including substantial other reason / constructive dismissal
On the Claimant’s appeal, No error . .
Cited – GMB Trade Union v Brown EAT 16-Oct-2007
EAT Unfair Dismissal: Reason for dismissal including substantial other reason / Compensation
The employee claimed constructive unfair dismissal because the employers refused to modify their grievance . .
Cited – Hastingsbury School v Clarke EAT 17-Dec-2007
EAT Unfair dismissal – Reasonableness of dismissal / Compensation
The employee, a school teacher, was subjected to a disciplinary procedure for alleged acts of misconduct of an inappropriate sexual nature . .
Cited – Ingram v Fairco Mcilhagga Ltd NIIT 2-Apr-2008
. .
Cited – Enfield Technical Services Ltd v Payne and Another CA 22-Apr-2008
The appellant company appealed dismissal of their defence to a claim for unfair dismissal that the employment contract was tainted with illegality. The EAT had heard two cases with raised the question of the effect on unfair dismissal claims of . .
Cited – Corpora Software Ltd v Perry EAT 1-May-2008
EAT Victimisation Discrimination – Unfair dismissal – Polkey deduction
The Appellants employed the Respondent as Sales Operation Director. She was dismissed on spurious grounds after she failed to agree a . .
Cited – Wilson UK Ltd v Turton and Another EAT 16-Sep-2008
EAT UNFAIR DISMISSAL: Polkey deduction
The Tribunal wrong to reject Polkey in view of genuineness of redundancy and that respondents would have been in the pool. . .
Cited – Harris v The Multiple Sclerosis Society NIIT 14-Oct-2008
. .
Cited – Allied Distillers Ltd v Handley and Others EAT 21-Oct-2008
EAT CONTRACT OF EMPLOYMENT: Damages for breach of contract
UNFAIR DISMISSAL: Compensation
UNFAIR DISMISSAL: Polkey deduction
Claimants all dismissed for redundancy in circumstances which . .
Cited – Smith Knight Fay Ltd v McCoy EAT 5-Mar-2009
EAT UNFAIR DISMISSAL
Procedural fairness/automatically unfair dismissal
S.98A(2) ERA
Polkey deduction
The employee was told at a meeting that he or his post would be made redundant at a . .
Cited – Virgin Media Ltd v Seddington and Another EAT 31-Mar-2009
EAT UNFAIR DISMISSAL: Polkey deduction
JURISDICTIONAL POINTS: 2002 Act and pre-action Requirements,
‘Automatic’ unfair dismissal for redundancy by reason of non-compliance with statutory procedure – . .
Cited – Aryeetey v Tuntum Housing Association EAT 8-Apr-2009
EAT UNFAIR DISMISSAL: Compensation
VICTIMISATION DISCRIMINATION: Whistleblowing
The Claimant was dismissed from his post as the respondent’s Finance Director by its Chief Executive. The Claimant brought . .
Cited – Fleming v PFG Plant Hire Ltd NIIT 9-Apr-2009
. .
Cited – Punch Pub Company Ltd v O’Neill EAT 23-Jul-2010
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .
Cited – Enfield Technical Services Ltd v Payne; Grace v BF Components Ltd EAT 25-Jul-2007
EAT Unfair dismissal – Exclusions including worker/jurisdiction
These two appeals consider the circumstances in which contracts will be considered illegal so as to preclude an employee from taking claims . .
Applied – Cartwright v Kings College London EAT 30-Apr-2012
EAT UNFAIR DISMISSAL – Polkey deduction
The Claimant was found (by the Court of Appeal) to have been unfairly dismissed by reason of failure to comply with Step 1 of the Standard Procedure. In all other . .
Cited – Cumbria County Council and Another v Bates EAT 13-Aug-2013
cumbria_batesEAT2013
EAT UNFAIR DISMISSAL – Compensation
The Claimant was employed by the First Respondent as a teacher at Dowdales School. He was found to have been unfairly dismissed. Post dismissal he was convicted of common . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 November 2022; Ref: scu.258088
[1994] EWCA Civ 30
England and Wales
Cited – Hinz v Berry CA 1970
Then plaintiff saw her husband killed and her children injured by a runaway motor car. At trial she was awarded damages for nervous shock. The question was whether, having regard to the fact that she had suffered sorrow and grief it would not be to . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 November 2022; Ref: scu.263226
The question in this personal injuries appeal is whether the judge was wrong not to make an award for future disadvantage on the labour market of the kind often referred to as a Smith v Manchester award.
Lord Justice Hughes
[2007] EWCA Civ 595
England and Wales
Updated: 26 November 2022; Ref: scu.253507
In a case framed in deceit the measure of damages involved ascertainment of the ‘real’ or ‘face’ value of the shares at the time of allotment or purchase.
(1860) 36 LT 97
England and Wales
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 November 2022; Ref: scu.191184
BP sought compensation after its land had been acquired compulsorily. The council said its claim was time barred. BP appealed from the Lands Tribunal, saying an agreement with the Authority had kept its claim alive.
Held: The fact of entry did not prevent purchase by agreement, which was usual. The agreement gave rise to a claim for consideration, and it was under that agreement that the authority had taken possession. Appeal allowed.
Lord Justice Kennedy, Lord Justice Mummery And Lord Justice Carnwath
[2003] EWCA Civ 798, Gazette 04-Sep-2003
Limitation Act 1980 9, Compulsory Purchase Act 1965 11
England and Wales
Cited – London Borough of Hillingdon v ARC Limited (No 2) CA 16-Jun-2000
The council entered upon land belonging to the company in accordance with the compulsory purchase procedures in 1982, but the company did not bring its claim for compensation until 1992. The council said the were out of time.
Held: Section 9 . .
Cited – West Midland Baptist (Trust) Association (Inc) v Birmingham Corporation HL 1970
The mere fact that an enactment shows that Parliament must have thought that the law was one thing, does not preclude the courts from deciding that the law was in fact something different. The position would be different if the provisions of the . .
Cited – Capital Investments Ltd v Wednesfield Urban District Council ChD 12-Feb-1964
The council set out to acquire two plots of land for development for housing. After the process had begun, it was decided that some of the land should be uised for educational purposes. A Land Charge had been served but the matter not completed. A . .
Cited – Amantilla Ltd v Telefusion plc 1987
The case concerned a quantum meruit claim under a building contract. Even though the basis of the claim lies in statute, nonetheless an agreement must be treated as an ‘acknowledgment’ of a ‘liquidated pecuniary claim’ for the purpose of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 November 2022; Ref: scu.183393
Morison P J
[1997] UKEAT 392 – 97 – 1407
England and Wales
Updated: 26 November 2022; Ref: scu.207613
[1903] 1 Ch 586
England and Wales
Appealed to – Shepheard v Broome 1904
. .
Affirmed on Appeal – Shepheard v Broome 1904
. .
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 November 2022; Ref: scu.191186
When considering claims for damages for shock, the court only recognised the action lying where the injury by shock was sustained ‘through the medium of the eye or the ear without direct contact.’ Wright L said: ‘No doubt, it has long ago been stated and often restated that if the wrong is established the wrongdoer must take the victim as he finds him. That, however, is only true . . on the condition that the wrong has been established or admitted. The question of liability is anterior to the question of the measure of the consequences which go with the liability.’
Lord Russell of Killowen: ‘In considering whether a person owes to another a duty a breach of which will render him liable to that other in damages for negligence, it is material to consider what the defendant ought to have contemplated as a reasonable man. This consideration may play a double role. It is relevant in cases of admitted negligence (where the duty and breach are admitted) to the question of remoteness of damage, ie, to the question of compensation not to culpability, but it is also relevant in testing the existence of a duty as the foundation of the alleged negligence, ie, to the question of culpability not to compensation.’
Lord MacMillan, Lord Wright, Lord Russell of Killowen
[1943] AC 92, [1943] SC (HL) 78, 1943 SLT 105, [1942] UKHL 5
Scotland
Disapproved – Owens v Liverpool Corporation CA 1938
Four family mourners at a funeral appealed against rejection of their claims for damages for distress caused by witnessing a collision between a negligently driven tramcar and the hearse.The incident had involved no apprehension, or sight, or sound . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Cited – Giullietta Galli-Atkinson v Seghal CA 21-Mar-2003
The claimant’s daughter was fatally injured in car accident, dying shortly after. The mother came upon the scene, witnessed a police cordon at the scene of the accident and was told of her death. She later saw the injuries at the mortuary and . .
Cited – King v Phillips CA 1952
Denning LJ said: ‘there can be no doubt since Bourhill v. Young that the test of liability for shock is foreseeability of injury by shock.’ A person ‘who suffers shock on being told of an accident to a loved one cannot recover damages from the . .
Cited – Salter v UB Frozen Chilled Foods OHCS 25-Jul-2003
The pursuer was involved in an accident at work, where his co-worker died. He suffered only psychiatric injury.
Held: Being directly involved, the pursuer was a primary victim, and accordingly not subject to the limits on claiming for . .
Cited – Smith v Littlewoods Organisation Limited (Chief Constable, Fife Constabulary, third party); Maloco v Littlewoods Organisation Ltd HL 1987
The defendant acquired a semi derelict cinema with a view to later development of the site. A fire started by others spread to the pursuer’s adjoining property.
Held: The defendants were not liable in negligence. The intervention of a third . .
Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Cited – Steel v Glasgow Iron and Steel Co Ltd 1944
The question was whether the actions of the deceased had broken the chain of causation when he intervened in an attempt to save property. ‘This rule of the ‘reasonable and probable consequence’ is a key that opens several locks; for it not only . .
Cited – Simmons v British Steel plc HL 29-Apr-2004
The claimant was injured at work as a consequence of the defender’s negligence. His injuries became more severe, and he came to suffer a disabling depression.
Held: the Inner House had been wrong to characterise the Outer House decision as . .
Cited – Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1) PC 18-Jan-1961
Foreseeability Standard to Establish Negligence
Complaint was made that oil had been discharged into Sydney Harbour causing damage. The court differentiated damage by fire from other types of physical damage to property for the purposes of liability in tort, saying ‘We have come back to the plain . .
Cited – McKillen v Barclay Curle and Co Ltd 1967
The Lord Ordinary had awarded the pursuer damages for tuberculosis, on the basis that in the accident he had fractured a rib and this had reactivated his pre-existing tuberculosis.
Held: The pursuer had failed to prove the causal connexion . .
Cited – Islington London Borough Council v University College London Hospital NHS Trust CA 16-Jun-2005
The local authority sought repayment from a negligent hospital of the cost of services it had had to provide to an injured patient. They said that the hospital had failed to advise the patient to resume taking warfarin when her operation was . .
Cited – Corr v IBC Vehicles Ltd CA 31-Mar-2006
The deceased had suffered a head injury whilst working for the defendant. In addition to severe physical consequences he suffered post-traumatic stress, became more and more depressed, and then committed suicide six years later. The claimant . .
Cited – Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police QBD 31-Jul-1990
Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police CA 31-May-1991
The defendant policed a football match at which many people died. The plaintiffs, being relatives and friends of the deceased, inter alia suffered nervous shock having seen the events either from within the ground, or from outside or at home on . .
Rejected – McLoughlin v O’Brian HL 6-May-1982
The plaintiff was the mother of a child who died in an horrific accident, in which her husband and two other children were also injured. She was at home at the time of the accident, but went to the hospital immediately when she had heard what had . .
Cited – Liverpool Women’s Hospital NHS Foundation Trust v Ronayne CA 17-Jun-2015
The respondent was an experienced ambulance driver. His wife underwent emergency treatment at the appellant’s hospital. He had claimed as a secondary victim for the distress he suffered witnessing her suffering.
Held: The hospital’s appeal . .
Cited – Wooldridge v Sumner and Another CA 4-Jun-1962
The plaintiff photographer was injured when attending a show jumping competition at the White City Stadium. A horse caught him as it passed.
Held: The defendant’s appeal against the finding of negligence succeeded: ‘a competitor or player . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 November 2022; Ref: scu.180104
quantum in a claim for copyright infringement
Ian Karet (sitting as a Deputy High Court Judge)
[2021] EWHC 932 (IPEC)
England and Wales
Updated: 25 November 2022; Ref: scu.662137
Allegation of professional negligence. The claimant sought damages against the defendant surveyors for negligently valuing a partially completed residential development over which it proposed to take a charge to secure a loan. On an initial application for summary judgment, an issue arose as to damages.
Held: The appeal succeeded, though the court emphasised that the decision was sensitive to facts assumed for the purpose of the pre-trial application.
The measure of damages is, with qualifications, the sum needed to restore the claimant as closely as possible to the position that he would have been in if he had not been wronged. Where a claimant lends money, and but for a negligent valuation would not have done so, the measure is the difference between: (a) the position the claimant would have been in, had the defendant not been negligent and (b) the claimant’s actual position. This is the ‘basic comparison’ discussed by Lord Nicholls in Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2) [1997] 1 WLR 1627. The basic comparison is typically between: (a) the amount of money lent by the claimant, plus interest on that money and (b) the value of the rights acquired under >the loan agreement plus the true value of the overvalued property
Lady Hale, President, Lord Kerr, Lord Sumption, Lord Lloyd-Jones, Lord Briggs
[2017] UKSC 77, [2017] 1 WLR 4627, [2018] 2 All ER 203, [2018] 1 BCLC 179, UKSC 2016/0156
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 2017 Nov 06am Video, SC 2017 Nov 06pm Video
England and Wales
Cited – Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .
Appeal from – Tiuta International Ltd v De Villiers Surveyors Ltd CA 1-Jul-2016
Appeal against an order giving summary judgment for the respondent, De Villiers Surveyors Ltd, on one issue relating to the claim by the appellant, Tiuta International Ltd, for damages for professional negligence.
Held: The appeal succeeded . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Cited – Preferred Mortgages Ltd v Bradford and Bingley Estate Agencies Ltd CA 8-Mar-2002
. .
Cited – Komercni Banka, A S v Stone and Rolls Ltd and Another ComC 15-Nov-2002
Toulson J discussed a set off against a claim for damages: ‘The question whether an alleged benefit should or should not be taken into account cannot be determined by mere application of the ‘but for’ test. Where the wrongful conduct consists of . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 November 2022; Ref: scu.599718
This appeal concerns the amount of damages recoverable by a lender from a negligent firm of accountants who failed to do a proper exercise of due diligence on the borrower to whom the money was lent. The majority of the loan was repaid by utilising money lent to the borrower by the owner of the lending company. Rose J has held that that repayment was a collateral matter which did not go to reduce the damages recoverable from the negligent accountants.
Held: (Majority) The judge had been right to regard the later refinancing as res inter alios acta. It did not therefore affect the amount of Swynson’s recoverable loss.
Longmore, Davis, Sales LJJ
[2015] EWCA Civ 629, [2015] PNLR 28, [2016] 1 WLR 1045, [2015] 2 CLC 102, [2015] WLR(D) 278
England and Wales
See Also – Swynson Ltd and Another v Lowick Rose Llp ChD 30-Jun-2014
The claimant said that it had received negligent advice from the defendant accountants in its financing of the purchase of a company in the US. After the company fell into difficulties, further advances were made. The parties disputed the . .
Appeal from – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 November 2022; Ref: scu.549462
inquiry as to damages – passing off action
Judge Hacon
[2014] EWHC 3572 (IPEC)
England and Wales
Updated: 25 November 2022; Ref: scu.538295
The claimant said that it had received negligent advice from the defendant accountants in its financing of the purchase of a company in the US. After the company fell into difficulties, further advances were made. The parties disputed the calculation of damages.
Rose J
[2014] EWHC 2085 (Ch), [2014] PNLR 27, [2014] CN 1161
England and Wales
See Also – Swynson Ltd v Lowick Rose Llp CA 25-Jun-2015
This appeal concerns the amount of damages recoverable by a lender from a negligent firm of accountants who failed to do a proper exercise of due diligence on the borrower to whom the money was lent. The majority of the loan was repaid by utilising . .
At First Instance – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 November 2022; Ref: scu.533666
Where more than one defendant is liable in damages, the court will make allowance for the insolvency of one when ordering a contribution from the others.
Lord Denning MR
[1966] 2 QB 475
England and Wales
Cited – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 November 2022; Ref: scu.193865
Flexibility in the date of breach rule applies in assessing damages for conversion.
[1991] 2 All ER 133
England and Wales
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 November 2022; Ref: scu.191180
An enforcement notice was served relating to a dwelling house which had been built with a roof covering of the wrong colour. The authority had described the breach of planning control by reference to the construction of the roof, rather than the construction of the house as a whole.
Held: This was an error sufficient to require the enforcement notice to be quashed. The character of the development to be considered derives from the whole development, and to construct only a small part would result in something different in character.
Lord Widgery CJ said: ‘For my part, and in the absence of authority, I would have had no hesitation in saying that in a case of this kind where there is to be new development on land previously undeveloped one ought, subject to any special provisions in the planning permission itself, to treat the operation as single one, and I test it for myself in this way. The purpose of all town and country planning is to preserve amenities and the sensible and attractive lay-out of properties, and if the appellants are right in this case and the grant of a permission of this kind is really the grant of multiple permissions to install brick by brick it would mean that an eccentric land developer could produce most extraordinary results on his land, results which might perfectly well redound to the disadvantage of others, without in any way falling foul of this legislation; he could leave holes in the walls of his house; he could leave half the roof off; he could do all sorts of eccentric things of that kind, and when he was tackled about it by the planning authority he would say: ‘But every brick is in accordance with the plans; at no point have I done anything which the plans did not authorise.’ If it were asked: ‘What about the all the vacant spaces which the plans intended to be filled?’ the answer would be: ‘There is no breach of planning control there. There is nothing done there and if you do nothing you cannot be wrong.”
Lord Widgery CJ
(1976) 31 PandCR 403
England and Wales
Cited – C F and M G Roberts v South Gloucestershire District Council LT 31-Dec-1994
LT COMPENSATION – Compulsory purchase of land for the construction of a road – value – assumed planning permission – value of minerals – planning permission for a commercial minerals operation not granted or to . .
Cited – Roberts and Another v South Gloucestershire Council CA 7-Nov-2002
The landowner appealed against the compensation awarded for the compulsory acquisition of his land for use as a road. The owners had been compensated only for its agricultural value, but said that it should have allowed for its value for minerals . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 November 2022; Ref: scu.188858
A plaintiff can recover whatever damages naturally resulted from the breach of contract, but damages cannot be given ‘for the disappointment of mind occasioned by the breach of contract.’
Pollock CB
(1856) 1 H and N 408, [1856] EngR 918, (1856) 156 ER 1261
England and Wales
Not Followed – Jarvis v Swans Tours Ltd CA 16-Oct-1972
The plaintiff had booked a holiday through the defendant travel tour company. He claimed damages after the holiday failed to live up to expectations.
Held: In appropriate cases where one party contracts to provide entertainment and enjoyment, . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 November 2022; Ref: scu.180936
After a road accident the plaintiff hired a car. His insurance brokers provided the car under an arrangement that was alleged to be illegal insurance business and would have prevented them from being subrogated to the plaintiff’s claim for damages in respect of the loss of the use of his car.
Held: Applying Donnelly, the relationship between the plaintiff and his insurance company was irrelevant: ‘It is admitted by the defendant that the plaintiff had a need for a replacement car. Lords Insurance Brokers Ltd. satisfied that need. It is accepted that the charge of pounds 328 was a reasonable charge having regard to all the circumstances. On the authority of Donnelly’s case that need had to be paid for by the defendant as the wrongdoer.’
Lawton LJ
[1984] RTR 99
England and Wales
Applied – Donnelly v Joyce CA 18-May-1973
A six year old injured his leg in a road accident, and needed daily attention. His mother gave up her job to look after him. The claim for damages on behalf of he boy included the mother’s loss of earnings. This was objected to on the grounds that . .
Cited – Dimond v Lovell HL 12-May-2000
A claimant sought as part of her damages for the cost of hiring a care whilst her own was off the road after an accident caused by the defendant. She agreed with a hire company to hire a car, but payment was delayed until the claim was settled.
Cited – Giles v Thompson, Devlin v Baslington (Conjoined Appeals) HL 1-Jun-1993
Car hire companies who pursued actions in motorists’ names to recover the costs of hiring a replacement vehicle after an accident, from negligent drivers, were not acting in a champertous and unlawful manner. Lord Mustill said: ‘there exists in . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 November 2022; Ref: scu.195964
The plaintiff council complained of the work done for it by the defendant builder.
Held: Steyn LJ said: ‘in the case of a building contract, the prima facie rule is cost of cure, i.e., the cost of remedying the defect: East Ham Corporation v. Bernard Sunley and Sons Ltd. ([1965] 3 All ER 619, [1966] AC 406). But where the cost of remedying the defects involves expense out of all proportion to the benefit which could accrue from it, the court is entitled to adopt the alternative measure of difference of the value of the works . .’
Dillon, Steyn, Waite LJJ
[1994] EWCA Civ 6, [1995] 1 WLR 68, [1995] 3 All ER 895
England and Wales
Cited – East Ham Corporation v Bernard Sunley and Sons Ltd HL 1965
In cases in which the plaintiff is seeking damages for the defective performance of a building contract, which is a contract for labour and materials, the normal measure of his damages is the cost of carrying out remedial work, or re-instatement. . .
Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.263235
The plaintff sought damages after a collision, but the car had already been damaged in a previous accident, the repair of which would cover the second accident. Lord Evershed MR said: ‘In my judgment in the present case the defendant should be taken to have injured a motor-car that was already in certain respects (that is in respect of the need for respraying) injured; with the result that to the extent of that need or injury the damage claimed did not flow from the defendant’s wrongdoing. It may no doubt be unfortunate for the plaintiffs that the collisions took place in the order in which they did.’
Donovan LJ said: ‘The question as I see it is this: what extra burden in the matter of respraying was put upon the plaintiff company by the second collision? To my mind the answer must be: None, for the earlier collision had already imposed the burden of respraying upon them.’
Lord Evershed MR, Harman LJ, Donovan LJ
[1961] EWCA Civ 3, [1961] 3 All ER 413, [1961] 3 WLR 749, [1962] 1 QB 33
England and Wales
Cited – Halsey v Milton Keynes General NHS Trust etc CA 11-May-2004
The court considered the effect on costs orders of a refusal to take part in alternate dispute resolution procedures. The defendant Trust had refused to take the dispute to a mediation. In neither case had the court ordered or recommended ADR.
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.262813
[2005] EWCA Civ 715
England and Wales
Cited – Spillman v Bradfield Riding Centre QBD 6-Feb-2007
The claimant child suffered very severe brain injury when kicked in the head by a horse at the defendant’s riding stables. The claimant appealed an interim award of damages. It had not been possible to determine her future earnings. . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.250056
[2006] EWCA Civ 1135
England and Wales
Updated: 24 November 2022; Ref: scu.244101
The court refused a mandatory injunction to compel the defendant to pull down part of a new building which interfered with the plaintiff’s light and exercised instead the Court of Chancery’s recently-acquired jurisdiction under the 1858 Act to order payment of damages: ‘. . I hold it . . . to be the duty of the court in such a case as the present not, by granting a mandatory injunction, to deliver over the defendants to the plaintiff bound hand and foot, in order to be made subject to any extortionate demand that he may by possibility make, but to substitute for such mandatory injunction an inquiry before itself, in order to ascertain the measure of damage that has been actually sustained.’
Lord Westbury LC
(1863) 3 De G J and S 263
England and Wales
Cited – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
Cited – Co-Operative Insurance Society Ltd v Argyll Stores HL 21-May-1997
The tenants of a unit on a large shopping centre found the business losing money, and closed it in contravention of a ‘keep open’ clause in the lease. They now appealed from a mandatory injunction requiring them to keep the store open.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.222601
A cargo of whisky was lost in carriage by sea between Leith and Newcastle. A second shipment was made and the loss was claimed. The House was asked whether ‘in a question between a carrier and the person to whom the carrier is responsible in the event of the property being lost, whether it be true in law, that the sending of an invoice to the consignee, by which it appeared that the property had been insured and the freight paid by the consignor, and the amount charged by the consignor to the consignee, deprived the consignor of the power of suing, and of an interest or right to recover the value of the property.’
Held: While in general delivery to the carrier was delivery to the consignee and the risk then passed to the consignee, that position could be varied: ‘If a particular contract be proved between the consignor and the consignee, – and it does not follow that the circumstance of the freight and the insurance being paid by the one or the other is to be considered a conclusive evidence of ownership, – as notwithstanding the ordinary rule, of course there may be special contracts; – where the party undertaking to consign undertakes to deliver at a particular place, and if he undertakes to deliver at a particular place, the property, till it reaches that place, and is delivered according to the contract, is at the risk of the party consigning; so although the consignor may follow the directions of the consignee, and deliver the property to be conveyed, either by a particular carrier or in the ordinary course of business, still the consignor may make such a contract with the carrier as will make the carrier liable to him .’ and ‘Although, generally speaking, where there is a delivery to a carrier to deliver to a consignee, the consignee is the proper person to bring the action against the carrier if they should be lost; yet the consignor may have a right to sue if he made a special contract with the carrier, and the carrier has agreed to take the goods from the consignor and to deliver them to any particular person at a particular place, which special contract supersedes the necessity of showing ownership in the goods; and by authority of the case of Davis v. James (5 Burr. 2680), and the latest case of Joseph v. Knox (3 Camp. 320) that the consignor is able to maintain an action, though the goods may be the goods of the consignee. . the authorities seem to me to establish that the consignor is entitled to maintain the action where there is a contract to deliver at a particular place, provided the risk appears in fact to be still on him.’
Lord Cottenham LC discussed whether the delivery to a carrier was delivery to the purchaser: ‘It is no doubt true as a general rule, that the delivery by the consignor to the carrier is a delivery to the consignee, and that the risk is after such delivery the risk of the consignee. This is so if, without designating the particular carrier, the consignee directs that the goods shall be sent by the ordinary conveyance: the delivery to the ordinary carrier is then a delivery to the consignee, and the consignee incurs all the risk of the carriage. And it is still more strongly so if the goods are sent by a carrier specially pointed out by the consignee himself, for such carrier then becomes his special agent.’ and ‘But though the authorities all establish the general inference I have stated, yet that general inference is capable of being varied by the circumstances of any special arrangement between the parties, or of any particular mode of dealing between them.’
Lord Cottenham LC
(1839) 6 Cl and F 600, (1839) 3 Maclean and R 663, [1839] EngR 824, (1838,1839) 6 Cl and Fin 600, (1839) 7 ER 824
Scotland
Relied upon – Joseph v Knox 1813
. .
Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Cited – Campbell v Tyson IHCS 1840
It was asked whether earlier cases established that the mere contracting for the safe carriage, if made by the consignor, entitled him to sue the carrier for damages, if the carrier failed to perform the duty undertaken by him under that contract. . .
Applied – Darlington Borough Council v Wiltshier Northern Ltd and Others CA 29-Jun-1994
The council owned land on which it wanted to build a recreational centre. Construction contracts were entered into not by the council but by a finance company, the building contractors being the respondents Wiltshier Northern Ltd. The finance . .
Cited – Scottish and Newcastle International Limited v Othon Ghalanos Ltd HL 20-Feb-2008
The defendant challenged a decision that the English court had jurisdiction to hear a claim in contract saying that the appropriate court was in Cyprus. The cargo was taken by ship from Liverpool to Limassol. An English court would only have . .
Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.218898
[2002] EWCA Civ 336
England and Wales
Cited – Tiuta International Ltd (In Liquidation) v De Villiers Surveyors Ltd SC 29-Nov-2017
Allegation of professional negligence. The claimant sought damages against the defendant surveyors for negligently valuing a partially completed residential development over which it proposed to take a charge to secure a loan. On an initial . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.216973
The claimants bought property at a price based upon a valuation provided by the defendants. They sought damages being the costs of repairing the property, the necessity of such repairs not having been revealed by the report. Expert valuation showed that the property, even unrepaired, exceeded in value the price paid. The defendants obtained summary judgment on the basis that no damages were payable. The claimant appealed.
Held: the damages in negligence would be nil, but in contract, the damages payable were what was required in order to put the claimants in the position they would have been in the absence of a breach. Even so, the ‘cost of repairs’ basis would be inappropriate. It was irreconcilable with restitutionary or compensatory principles underlying the award of damages.
The appellants claim damages against the respondent in respect of an allegedly negligent survey carried out by the respondent for the appellants of a dwellinghouse
Judge LJ, Parker LJ, Bodey J
Gazette 25-Oct-2001, [2001] EWCA Civ 1553, [2001] 42 EGCS 138, [2002] 1 P and CR 37, 82 Con LR 126, [2002] Lloyd’s Rep PN 111, [2002] PNLR 12
England and Wales
Updated: 24 November 2022; Ref: scu.201441
‘From the inclination of the court in this last case, and from the concluding part of Lord Kenyon’s judgment in Merryweather v Nixon, and from reason, justice and sound policy, the rule that wrongdoers cannot have redress or contribution against each other is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act.’
Best CJ
[1827] 4 Bin 66
England and Wales
Updated: 24 November 2022; Ref: scu.200662
[1878] 7 Ch Div 815
England and Wales
Approved – McGriel v Wake CA 1984
. .
Cited – English Churches Housing Group v Shine CA 7-Apr-2004
The claimant was a secure tenant of English Churches Housing Group. He was unemployed and lived on benefits. He claimed damages against his landlord for breaches of the repairing covenants implied by section 11. The court considerd the appropriate . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.198679
Lord Justice Clerk (Grant)
[1969] 3 All ER 1621, 1969 SC 14
Scotland
Obiter rmarks doubted – McKillen v Barclay Curle and Co Ltd 1967
The Lord Ordinary had awarded the pursuer damages for tuberculosis, on the basis that in the accident he had fractured a rib and this had reactivated his pre-existing tuberculosis.
Held: The pursuer had failed to prove the causal connexion . .
Cited – Glasgow Corporation v Muir HL 16-Apr-1943
The House considered the proper test to define the standard of care that must be adopted by the reasonable man in a claim for negligence.
Held: Lord Clauson said that the test is whether the person owing the duty of care ‘had in contemplation . .
Cited – Simmons v British Steel plc HL 29-Apr-2004
The claimant was injured at work as a consequence of the defender’s negligence. His injuries became more severe, and he came to suffer a disabling depression.
Held: the Inner House had been wrong to characterise the Outer House decision as . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.196530
Executors claimed as damages the amount of Inheritance Tax which became payable on death as a result of the negligent advice given to the deceased by the defendant.
Held: The damage claimed (liability for inheritance tax) was not suffered until the date of death. ‘The claimants are not suing in respect of a lost opportunity suffered by Mrs Macaulay in her lifetime. They are suing in respect of the IHT liability which arose on Mrs Macaulay’s death and which did not exist until she died.’ and ‘the damage relied on as a central ingredient of the cause of action is the amount of IHT payable by Mrs Macaulay’s estate. In my judgment, it is of some relevance that the IHT payable on death is imposed directly on the personal representatives as such. It is not imposed on the deceased ‘
Park J
Unreported, 29 April 1999
England and Wales
Cited – Daniels v Thompson CA 18-Mar-2004
The executor brought an action against the solicitor who had advised his client in connection with the transfer of her house in which she was to continue to live, saying he should have advised her that the gift would not protect her from Inheritance . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.196071
On assessment of value for a compulsory purchase of land for a reservoir, if the site had ‘peculiar natural advantages’ for the supply of water that could be taken into account, but ‘there is no value for which compensation ought to be given on this head if the value is created or enhanced simply by the Act or by the scheme of the promoters’ .
Wright J
[1903] 1 KB 574
England and Wales
Approved – In re Gough and Aspatria, Silloth and District Joint Water Board CA 1904
. .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.196509
The House was asked as to the extent to which a consignor can claim damages against a carrier in circumstances where the consignor did not retain either property or risk. To the general principle that a person cannot recover substantial damages for breach of contract where he himself has suffered no loss by reason of the breach, there is an exception applicable to contracts of carriage: ‘that the consignor may recover substantial damages against the shipowner if there is privity of contract between him and the carrier for the carriage of goods; although, if the goods are not his property or at his risk, he will be accountable to the true owner for the proceeds of his judgment.’
Lord Diplock rationalised the rule in Lambert to fit into the pattern of English law by treating it: ‘as an application of the principle, accepted also in relation to policies of insurance upon goods, that in a commercial contract concerning goods where it is in the contemplation of the parties that the proprietary interests in the goods may be transferred from one owner to another after the contract has been entered into and before the breach which causes loss or damage to the goods, an original party to the contract, if such be the intention of them both, is to be treated in law as having entered into the contract for the benefit of all persons who have or may acquire an interest in the goods before they are lost or damaged, and is entitled to recover by way of damages for breach of contract the actual loss sustained by those for whose benefit the contract is entered into.’
He explained the common law approach underlying section 32 in terms of bailment: ‘The question who stood in relation of bailor to carrier and so was entitled to sue him for the full value of the goods lost or the full amount of the damage could only arise where the consignor and consignee were different persons. In such a case the presumption was that the bailor was the person named as consignee and that in delivering possession of the goods to the carrier the consignor was acting and purporting to act as agent only for a designated principal – the consignee.’
Lord Brandon, Lord Diplock
[1977] AC 774, [1976] 3 All ER 129
England and Wales
Cited – Dawes v Peck 1799
Where there is a named consignee on a bill of lading it may be inferred that the contracting party is the consignee not the shipper. . .
Cited – Borealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Cited – Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and Others; St. Martins Property Corporation Ltd v Sir Robert McAlpine HL 8-Dec-1993
A contractor had done defective work in breach of a building contract with the developer but the loss was suffered by a third party who had by then purchased the development. The developer recovered the loss suffered by the purchaser.
Held: . .
Cited – Darlington Borough Council v Wiltshier Northern Ltd and Others CA 29-Jun-1994
The council owned land on which it wanted to build a recreational centre. Construction contracts were entered into not by the council but by a finance company, the building contractors being the respondents Wiltshier Northern Ltd. The finance . .
Cited – Stora Enso Oyj v Port of Dundee OHCS 8-Mar-2006
Two consignments were destroyed by a fire in the defendaers warehouse. The defender asserted that the pursuer had no title to the goods because under the ‘CIP’ contract, title had passed already to the consignee.
Held: The 1979 Act provided . .
Cited – Scottish and Newcastle International Limited v Othon Ghalanos Ltd HL 20-Feb-2008
The defendant challenged a decision that the English court had jurisdiction to hear a claim in contract saying that the appropriate court was in Cyprus. The cargo was taken by ship from Liverpool to Limassol. An English court would only have . .
Cited – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Cited – Helmsley Acceptances Ltd v Hampton CA 11-Mar-2010
The claimant lender sought damages from an allegedly negligent valuation by the defendant. It had syndicated its loan, and the defendant now argued that it could only claim for that part of the loan for which it retained ownership.
Held: The . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Cited – SS (Sri Lanka), Regina (on The Application of) v The Secretary of State for The Home Department CA 15-Jun-2018
The court was asked whether, in cases heard by the First-tier Tribunal (Immigration and Asylum Chamber) where the credibility of the appellant is in issue, there is a rule that a delay of more than three months between the hearing of oral evidence . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.194553
Application for further interim payment of damages.
Coulson J
[2008] EWHC 2526 (QB)
England and Wales
Updated: 23 November 2022; Ref: scu.277343
Charterers should have redelivered the vessel by a certain date but failed to do so.
Held: They were held liable in damages for the difference between the market and charterparty rate for the overrun period. Lord Denning said that where the charterer had an obligation to redeliver by a stated date: ‘If he does not do so – and the market rate has gone up – he will be bound to pay the extra. That is to say he will be bound to pay the charter rate up to the end of the stated period and the market rate thereafter, see Watson v Merryweather’.
Lord Denning
[1975] I LLR 117
England and Wales
Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.246743
Cotton cloth was sold. The buyer was to use it to fulfil his own contract with a sub-buyer. The cloth was not of the contractual quality but the buyer was able to perform the sub-contract by delivering the same cloth. The sub-buyers paid the full price.
Held: The normal measure of damages applied namely the difference between the market price at the time and place of delivery of cloth of the contractual quality and the market price at the time and place of delivery of the cloth actually delivered.
[1920] 2 KB 11
England and Wales
Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Distinguished – Bence Graphics International Ltd v Fasson UK Ltd CA 24-Oct-1996
Bench sold vinyl film to Fasson for decals to identify sea-borne bulk containers. A term required the film to be legible condition for at least five years. Fasson sold them to container manufacturers who supplied the containers marked with the . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.246956
Where a charterer had overrun his time, and faced a claim for damages, under the provisions of the amended Baltime form, the market rate should be assessed by reference to the market rate for 11-13 month charters (the period of the charterparty) as at the date of the commencement of the overrun period and then applied to that period alone. Lord Denning said that in the case of an illegitimate last voyage, the measure of recovery, whether as damages or upon a quantum meruit, was as follows: ‘In either case the amount would be assessed at the market rate then ruling for a time charter trip for a voyage at that time. That is for a time charter for the period of time occupied by such a voyage based on spot rates for the voyage charter but adjusted to a time charter basis. That would be obviously fair and just. The charterer by sending her on that last illegitimate voyage would have received the high market rate then prevailing and should pay damages based on that rate for that voyage’.
[1977] 2 LLR 1
England and Wales
Cited – Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia ComC 1-Dec-2006
The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.246744
(High Court of Australia) ‘It seems to us that, in a case where there is no qualified privilege to report or repeat the defamatory statements of others, the whole cohesion of the law of defamation would be destroyed, if it were permissible merely to plead and prove that the defamatory statement was made by another; that this fact was stated in the matter complained of and that the defamatory imputation was not adopted or affirmed. The law as to qualified protection of the reports of certain designated matters would be largely if not wholly redundant.’ and ‘It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways-as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.’ (Windeyer J)
McTiernan, Taylor, Menzies, Windeyer and Owen JJ
(1966) 117 CLR 118, [1966] HCA 40
Australia
Cited – Rookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .
Appeal from – Australian Consolidated Press Limited v Uren PC 24-Jul-1967
The Board declined to interfere with the decision of the High Court of Australia not to review its jurisprudence on exemplary damages: ‘[I]n a sphere of law where its policy calls for decision and where its policy in a particular country is . .
Cited – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
Cited – Stern v Piper and Others CA 21-May-1996
The defendant newspaper said that allegations had been made against the plaintiff that he was not paying his debts. In their defence they pleaded justification and the fact that he was being sued for debt.
Held: A defamation was not to be . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.223205
Widgery J said: ‘Of course, a newspaper is always published for profit. It is the purpose of a newspaper to make money and build up circulation. You must not go away with the idea that because of that any libel in a newspaper is a libel for which exemplary or punitive damages must be awarded. If a newspaper, in the ordinary way of business, publishes news in regard to a particular item and happens to make a mistake, the mere fact that it is publishing for profit does not open the door to an ward of exemplary or punitive damages. The only cases (and they must be very exceptional, you may think) in which exemplary or punitive damages are permissible are those cases where the jury, is satisfied that the publication was done with a deliberate, calculated view to making a profit out of that publication and ignoring the fact that damages might be payable because they would be so small, at any rate so small in relation to the potential profit.’
Widgery J
[1965] 1 WLR 1038, [1965] 2 All ER 954
England and Wales
Applied – Rookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .
Cited – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.223200
The court considered the question of whether the court should award the additional costs of receiving investment advice to deal with an award of damages: ‘The award I make is compensatory. The whole object of the exercise upon which I have embarked by the progress of multipliers and multiplicands is to achieve a figure which compensates the plaintiff one and for all. The calculation of that figure, so far as future economic loss is concerned, seeks to achieve such a sum as will enable the plaintiff to recover her annual economic loss for the rest of her life, whilst in the process dissipating the fund. The result is what should be achieved by the award itself. Having acknowledged that the proposition however, the Court is not concerned with the disposal of the award once it is made. The plaintiff may spend it as she wishes. The defendant, in my judgment, should not be called upon to find further monies to assist the plaintiff in the proper administration of an award which, in itself, affords adequate compensation. Furthermore in my view the employment of financial advisers and the like is a consequence of my award and not a consequence of negligence of the defendant. The claim fails on the ground of remoteness.’
Russell J
Unreported, November 8 1985
England and Wales
Not Followed – Anderson v Davis QBD 1993
The court referred to the judgment in Francis -v- Bostock: ‘That judgment of Russell J., as he then was, has been followed in other cases and it is with some trepidation that I decided not to follow it here, for the following reasons. First, in a . .
Cited – Eagle (By Her Litigation Friend) v Chambers CA 29-Jul-2004
The claimant had been severely injured, and a substantial damages award made. Cross appeals were heard as to the several elements awarded. The claimant sought as part of her award of damages for personal injuries the fees she would have to pay to . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.200635
The plaintiffs were patients of the defendant dentist who had carried out unnecessary treatment on them; they claimed damages for trespass and sought aggravated damages.
Held: There was no reason in principle why awards of aggravated damages should not be made for feelings of anger or indignation in cases of trespass to the person where injury to the feelings were an important part of the damage for which compensation was awarded: ‘To say that the law permits recovery of aggravated damages where the relevant conduct has caused injury to feelings, insult indignity, humiliation and a heightened sense of injury or grievance, but not where it has caused anger or indignation, is very difficult to justify in terms of principle or common sense’. The plaintiffs were entitled to aggravated but moderate damages: ‘If substantial awards are made to reflect the court’s disapproval of the defendant’s conduct, they would become punitive. It is important to keep in mind that aggravated damages are compensatory.’
[1996] PIQR P1
England and Wales
Distinguished – AB v South West Water Services Ltd CA 1993
Exemplary and aggravated damages were claimed in an action for nuisance arising out of the contamination of water by the defendant utility.
Held: Sir Thomas Bingham MR said: ‘A defendant accused of crime may ordinarily be ordered (if . .
Cited – W v Meah 1986
The defendant had attacked two women, one he raped and the other he seriously sexually assaulted. They both brought actions claiming damages for personal injuries. The woman who was raped was subjected to what was described by the trial judge as . .
Cited – Richardson v Howie CA 13-Aug-2004
The claimant sought damages for assault. In the course of a tempestuous relationship, she said the respondent had physically assaulted her in Barbados. He was later convicted of soliciting her murder. She sought and was awarded aggravated damages, . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.200254
Where a case takes a long time to come on for trial because there has been unjustifiable delay by the plaintiff, he has been kept out of his money by his own default for part of the period. It is a ‘special reason’ for not giving some of the interest.
[1982] 1 WLR 816
England and Wales
Cited – Eagle (By Her Litigation Friend) v Chambers CA 29-Jul-2004
The claimant had been severely injured, and a substantial damages award made. Cross appeals were heard as to the several elements awarded. The claimant sought as part of her award of damages for personal injuries the fees she would have to pay to . .
Cited – Spittle v Bunney CA 1988
The plaintiff made a claim in damages for the loss of her mother’s services.
Held: In assessing a FAA claim on behalf of a child a judge, directing himself as he would a jury, was, in valuing the mothers services to take into account the . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.200638
‘Nominal damages are a mere peg on which to hang costs . . Nominal damages, in fact, mean a sum of money that may be spoken of, but that has no existence in point of quantity.’
Maule J
(1846) 2 CB 494
England and Wales
Cited – Neville v London Express Newspaper HL 1919
The question was whether, in order to recover damages for the tort which existed, it was necessary to show specific loss.
Held: An action for damages for maintenance will not lie in the absence of proof of special damage. . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.199940
Trespass to land – way-leave – unauthorised mining.
(1839) 5 MandW 351
England and Wales
Cited – Severn Trent Water Ltd v Barnes CA 13-May-2004
The water company appealed an award of damages after it had been found to have laid a water main under the claimant’s land without his knowledge or consent. The court had awarded restitutionary damages.
Held: The judge fell into error in . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.196921
The plaintiff cannot recover from the defendant by way of damages any sum greater than what is reasonably necessary for the purpose of making good his loss.
Pearson LJ
[1963] 1 WLR 1067
England and Wales
Cited – Clark v Tull (T/A Ardington Electrical Services) CA 1-May-2002
. .
Cited – Lagden v O’Connor HL 4-Dec-2003
The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.188636
Doyle -v- Olby (Ironmongers) Ltd was an appropriate way of assessing damages for an action under the Act, and damages are calculated on the basis of fraud.
A client misled into an investment is entitled to the measure of damages he would receive for a fraud.
[1991] 2 QB 297, [1991] EWCA Civ 12
Misrepresentation Act 1967 2(1)
England and Wales
Applied – Doyle v Olby (Ironmongers) Ltd CA 31-Jan-1969
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the . .
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Cited – Spice Girls Ltd v Aprilia World Service Bv ChD 24-Feb-2000
Disclosure Duties on those entering into contract
The claimants worked together as a five girl pop group. The defendants had signed a sponsorship agreement, but now resisted payment saying that one of the five, Geri, had given notice to leave the group, substantially changing what had been . .
Not relied upon – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Doubted – Peekay Intermark Ltd and Another v Australia and New Zealand Banking Group Ltd ComC 25-May-2005
The claimant alleged mis-selling of an emerging markets investment product. The defendant claimed that whilst there might have been a misrepresentation, by the time the contract was formed, correct information had been provided and incorporated in . .
Doubted – Cheltenham Borough Council v Laird QBD 15-Jun-2009
The council sought damages saying that their former chief executive had not disclosed her history of depressive illness when applying for her job.
Held: The replies were not dishonest as the form could have been misconstrued. The claim failed. . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.191181
The plaintiff complained that the holiday he had booked had been altered by the operator in several ways which inconvenienced and distressed him.
Held: The correct measure of damages was the difference between the amount he paid and the value of what had in fact been furnished, allowing for his feelings of annoyance and frustration.
Alan Pugh Judge
Unreported, October 15 1957
England and Wales
Updated: 23 November 2022; Ref: scu.183092
Application for leave to appeal against order of lands tribunal.
Lord Justice Carnwath
[2002] EWCA Civ 1431
England and Wales
Appeal from – Railtrack Plc and Another v Guinness Ltd LT 11-Feb-2002
ARBITRATION – access rights – development land – value of access rights over railway to allow development – residual valuations – value of rights determined at pounds 5 million . .
Application for leave to appeal – Railtrack Plc (In Railway Administration) v Guinness Limited CA 20-Feb-2003
The case involved an appeal from the Land’s Tribunal arbitration award setting compensation for land to be acquired. The question was whether the value should have been that acceptable to a willing seller, or to a ‘a company regulated and subsidised . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.177730
Substantial items of equipment had been destroyed in Saudi Arabia, and needed to be valued.
Held: The valuation had to include the time and place of its destruction. Accordingly the valuation correctly calculated the loss by asking for the best second hand price in Europe and added the costs of transportation.
Lord Justice Peter Gibson, Lord Justice Tuckey, Mr Justice Nelson
[2003] EWCA Civ 684, Times 27-May-2003
England and Wales
Cited – Southampton Container Terminals Ltd v Hansa Schiffahrts GmbH (The Maersk Colombo) CA 3-May-2001
The claimants operated the container terminal in Southampton. A crane was struck and damaged beyond repair by the defendants’ vessel. The crane was not replaced because before the casualty the claimants had ordered two new cranes. Loss of use of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.182334
[2003] EWCA Civ 647
England and Wales
Updated: 23 November 2022; Ref: scu.182330
Sir Martin Nourse, Lord Justice Ward, Lord Justice Mance
[2002] EWCA Civ 1427
England and Wales
Updated: 23 November 2022; Ref: scu.178098
Whilst it was settled law that no compensation was payable for temporary disturbance to neighbouring land by building works on land compulsorily purchased, as soon as that disturbance came to produce physical damage, compensation became payable.
Beldam and Ward LJJ and Sir Christopher Slade
Gazette 23-Sep-1998, Times 24-Aug-1998, [1998] EWCA Civ 1273, [1999] 1 WLR 796, [1998] 4 All ER 852
Compulsory Purchase Act 1965 10
England and Wales
Cited – Caledonian Railway Co v Walker’s Trustees 1882
The court considered the extent of the duty to compensate for disturbance of a business when land was compulsorily purchased. Lord Selborne LC said: ‘The obstruction by the execution of the work, of a man’s direct access to his house or land, . .
Cited – Andreae v Selfridge and Co Ltd CA 1938
The plaintiff had a hotel. The rest of the island had been acquired by the defendant which was demolishing and rebuilding the other properties. The plaintiff complained, and the judge found, that by reason of the operations, which involved noise and . .
Cited – Westminster City Council v Ocean Leisure Limited CA 21-Jul-2004
The claimant company owned property next to land which had been acquired to build a new bridge across the Thames. It sought compensation for disturbance to its business from the works.
Held: The state of the law was complicated and . .
Cited – Moto Hospitality Ltd v Secretary of State for Transport CA 26-Jul-2007
The company sought damages to its business on a motorway service station when works closed an access road.
Held: The Secretary of State’s appeal succeeded. A claim for compensation under section 10 had not been established, at least in respect . .
Cited – Hiscox Syndicates Ltd and Another v The Pinnacle Ltd and others ChD 25-Jan-2008
The claimants sought an injunction in nuisance, saying that the defendants had agreed to use all reasonable endeavours to avoid causing a nuisance to them in demolition works on their neighbouring land.
Held: The injunction should be granted. . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.144752
(High Court of Australia) The plaintiff farmers sought damages for financial losses incurred after the defendant negligently introduced a disease. Although the disease was not shown to have spread, neighbouring farm owners suffered economic loss by the imposition of a potato marketing ban in Western Australia attributable to the proximity of their farms to the outbreak of the disease, and sued the defendant for what was therefore pure economic loss (the absence of any escape of the disease preventing a claim under Rylands v. Fletcher).
Held: The appeal was allowed with costs. An important criterion for the imposition of liability for economic loss lay in ascertaining the extent to which the plaintiff was vulnerable to incurring loss by reason of the defendant’s conduct, and the extent to which that was or should have been apparent to the defendant.
Kirby J said: ‘As against the approach which I favour, it has been said that the three identified elements are mere ‘labels’. So indeed they are . . Labels are commonly used by lawyers. They help steer the mind through the task in hand.’
Gleeson CJ considered the exclusionary rule (and its distinction between physical and economic loss), but did not need to discuss what exactly happened to the Perre’s potatoes, so as to establish whether it was physical damage. The loss was categorised as pure economic loss. Callinan J said that what happened to the uninfected potatoes ‘may not have been actual physical damage’, but he compared what happened to them with what happens to land which is said to be subject to planning blight.
Gleeson CJ, Callinan J, Kirby J
(1999) 198 CLR 180, [1999] HCA 36, [1999] 64 ALR 606, [1999] 64 73 ALJR 1190, [1999] 73 ALJR 1190
Australia
Cited – HM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
Cited – Calvert v William Hill Credit Ltd ChD 12-Mar-2008
The claimant said that the defendant bookmakers had been negligent in allowing him to continue betting when they should have known that he was acting under an addiction. The defendant company had a policy for achieving responsible gambling, . .
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 November 2022; Ref: scu.331082
The court considered the applicable level of basic damages for false imprisonment.
Kenneth Parker QC J
[2008] EWHC 3189 (Admin)
England and Wales
Cited – Muuse v Secretary of State for The Home Department CA 27-Apr-2010
The claimant, a Dutch national, was detained pending deportation. He was arrested ‘for immigration’ after being given bail in other proceedings. It had been found that that detention was unlawful. He did not come within the criteria for deportation, . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 November 2022; Ref: scu.293966
[1993] EWCA Civ 24, [1993] 49 EG 115, [1993] EGCS 68, [1993] NPC 60
England and Wales
Updated: 22 November 2022; Ref: scu.262600
[2007] EWCA Civ 1204, [2008] JPL 559, [2008] RVR 54, [2008] 1 P and CR 14, [2008] 2 All ER 852, [2007] NPC 126, [2008] 1 WLR 954
England and Wales
Updated: 22 November 2022; Ref: scu.261452
‘The purpose of the award of an enhanced rate of interest or indemnity costs is to encourage parties to make offers of settlement in the ordinary sense of that word. It is to compensate the claimant who has made an offer that should have been accepted for the risk of continuing with the action and to bring home to the defendant the risks being run by not accepting it.’
Thomas J
[2002] EWHC 253 (Comm), [2003] 1 Lloyd’s Rep 239
England and Wales
See also – East West Corporation v DKBS 1912 and Another ComC 7-Feb-2002
. .
See also – East West Corporation v DKBS 1912 and Another ComC 7-Feb-2002
. .
Appeal from – P and O Nedlloyd B v Dampskibsselskabet Af, 1912, Aktieselskab, Aktieselskabet Dampskibsselskabet Svendborg v Utaniko Limited, East West Corporation CA 12-Feb-2003
The claimants shipped goods to Chile through the defendant shipping line. The goods were lost. The shippers rights of suit under the contract of carriage had been transferred to a third party.
Held: The shippers as the bank’s principals . .
Cited – DSN v Blackpool Football Club Ltd QBD 20-Mar-2020
Indemnity costs award on ADR refusal
The claimant succeeded in his claim for damages for historic sexual abuse, and recovered more than his rejected offer for settlement. He now claimed his costs on an indemnity basis.
Held: ‘It is correct that an order for indemnity costs means . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 November 2022; Ref: scu.178914
The tenants of a unit on a large shopping centre found the business losing money, and closed it in contravention of a ‘keep open’ clause in the lease. They now appealed from a mandatory injunction requiring them to keep the store open.
Held: Specific performance is an exceptional remedy, as opposed to the common law damages to which a successful plaintiff is entitled as of right. A ‘stay open’ clause in a commercial lease is not to be enforced by a mandatory injunction requiring the business to be conducted at a loss. The remedy of damages is adequate. To make an order might invite constant requests to the court to judge compliance with it, and the availability of contempt proceedings may be expensive and not a sufficient restraint. The settled practice was against such orders, and the practice was based on sound common sense: ‘although any breach of covenant is regrettable, the exercise of the discretion as to whether or not to grant specific performance starts from the fact that the covenant has been broken. Both landlord and tenant in this case are large sophisticated commercial organisations and I have no doubt that both were perfectly aware that the remedy for breach of the covenant was likely to be limited to an award of damages. The interests of both were purely financial: there was no element of personal breach of faith.’
Lord Hoffmann: ‘Mr Smith who appeared for CIS said that if the order became oppressive (for example because Argyle were being driven into bankruptcy) or difficult to enforce they could apply for it to be varied or discharged. But the order would be a final order and there is no case in this jurisdiction in which such an order has been varied or discharged except when the injuncted activity has been legalised by statute.’
Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Hoffmann, Lord Hope of Craighead, Lord Clyde
Times 26-May-1997, [1997] UKHL 17, [1997] 2 WLR 898, [1998] AC 1, [1997] All ER 297, [1997] 1 EGLR 52, [1997] CLC 1114, [1997] NPC 79, [1997] EG 81, [1997] 23 EG 141
England and Wales
Cited – Attorney-General v Colchester Corporation 1955
Lord Goddard said: ‘No authority has been quoted to show that an injunction will be granted enjoining a person to carry on a business, nor can I think that one ever would be, certainly not where the business is a losing concern.’ . .
Cited – Wilson v Northampton and Banbury Junction Railway Co 1872
Lord Selborne LC said: ‘It is of the highest importance . . that all communications between a solicitor and a client upon a subject which may lead to litigation should be privileged, and I think the court is bound to consider that . . almost any . .
Cited – Braddon Towers Ltd v International Stores Ltd 1987
Slade J considered the availability of an order for specific performance of a positive covenant: ‘Whether or not this may be properly described as a rule of law, I do not doubt that for many years practitioners have advised their clients that it is . .
Cited – J C Williamson Ltd v Lukey and Mulholland 1931
(High Court of Australia) Dixon J said: ‘Specific performance is inapplicable when the continued supervision of the Court is necessary in order to ensure the fulfilment of the contract.’ . .
Cited – C H Giles and Co v Morris 1972
Megarry J considered why a court should be reluctant to create an obligation to continue a business where a court might be asked to judge compliance:: ‘difficulties of constant superintendence’ were a ‘narrow consideration’ because ‘there is . .
Cited – Isenberg v East India House Estate Co Ltd 1863
The court refused a mandatory injunction to compel the defendant to pull down part of a new building which interfered with the plaintiff’s light and exercised instead the Court of Chancery’s recently-acquired jurisdiction under the 1858 Act to order . .
Cited – Wolverhampton Corporation v Emmons 1901
The court granted an order for specific performance of a covenant in a building contract. Romer LJ said that the first condition for specific enforcement of a building contract was that ‘the particulars of the work are so far definitely ascertained . .
Cited – Tito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .
Cited – Jeune v Queens Cross Properties Ltd 1974
The lease contained a covenant by the landlord to carry out repairs. A balcony of his, not within the area let, was at risk of collapsing.
Held: Damages alone would be not an adequate remedy. The court ordered specific performance of the . .
Cited – Shiloh Spinners Ltd v Harding HL 13-Dec-1972
A right of re-entry had been reserved in the lease on the assignment (and not on the initial grant) of a term of years in order to reinforce covenants (to support, fence and repair) which were taken for the benefit of other retained land of the . .
Cited – Dowty Boulton Paul Ltd v Wolverhampton Corporation 1971
An order was sought to require the defendant tenants to keep an airfield open as a going concern.
Held: The order was refused. Pennycuick V-C said: ‘It is very well established that the court will not order specific performance of an . .
Appeal from – Co-Operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd CA 29-Dec-1995
A ‘keep open’ clause in a commercial lease can be enforced by an order specific performance but only in rare cases. It would normally be unreasonable.
Millett LJ said: ‘The competing arguments in the present case, and the difference in the . .
Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
Cited – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 November 2022; Ref: scu.158892
This appeal raises a straightforward but important point concerning the interest that the court may award when a claimant’s CPR Part 36 offer is rejected, but the claimant achieves a greater award at trial.
Sir Geoffrey Vos C said: ‘The parties are obliged to make reasonable efforts to settle, and to respond properly to Part 36 offers made by the other side. The regime of sanctions and rewards has been introduced to incentivise parties to behave reasonably, and if they do not, the court’s powers can be expected to be used to their disadvantage. The parties are obliged to conduct litigation collaboratively and to engage constructively in a settlement process.’
Sir Geoffrey Vos Ch, Kitchin, Floyd LJJ
[2017] EWCA Civ 195, [2017] WLR(D) 218, [2017] 1 WLR 3465, [2017] 2 Costs LR 287, [2017] CP Rep 24, [2017] 2 Lloyd’s Rep 93
England and Wales
Appeal from – OMV Petrom Sa v Glencore International Ag ComC 7-Feb-2014
The claimant sought to have struck out as abuse of process parts of the defence, saying that the factual issues raised had already been resolved in arbitration proceedings, but as against a different oarty. The defendant replied that the arbitration . .
Appeal from – OMV Petrom Sa v Glencore International Ag ComC 13-Mar-2015
. .
See Also – OMV Petrom Sa v Glencore International Ag CA 21-Jul-2016
‘This case concerns the measure of damages for deceit.’ . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 November 2022; Ref: scu.581132
[2014] EWHC 2048 (QB)
England and Wales
Updated: 20 November 2022; Ref: scu.533768
[2009] EWHC 2606 (QB)
England and Wales
Updated: 19 November 2022; Ref: scu.431292
The claimant said that he had left valuable jewelry with the defendant for sale. The defendant said at first they had been stolen, but then returned jewelry which the claimant denied was what had been left. The defendant appealed a finding that he had converted the jewelry left. The judge found that both parties had been dishonest as to the values.
Held: Since both parties had lied, the court could not rely on any presumption normally available against a destroyer of evidence. Since the defendant had substituted jewelry, the new jewelry should be assumed to be worth less than the originals. The judge had applied the correct principles to assess the evidence, and had the advantage of hearing the parties in a long trial. The appeal failed.
[2009] EWCA Civ 851
England and Wales
Cited – Senate Electrical Wholesalers Ltd v Alcatel Submarine Networks Ltd (Formerly STC Submarine Systems Ltd) CA 22-Jun-1998
Where damages were to be awarded for breach of warranty on sale of goodwill, an assessment according to a price earnings ratio was appropriate only if used in the contract or agreed as appropriate by the experts. In the context of a notice clause in . .
Cited – Armory v Delamirie KBD 1722
A jeweller to whom a chimney sweep had taken a jewel he had found, took the jewel out of the socket and refused to return it. The chimney sweep sued him in trover. On the measure of damages, the court ruled ‘unless the defendant did produce the . .
Cited – Biggin v Permanite 1951
Devlin J discussed what a party must do to bring evidence to support his claim: ‘Where precise evidence is obtainable, the court naturally expects to have it [but] where it is not, the court must do the best it can.’ . .
Cited – Chubb Cash Ltd v John Crilley and Son (a firm) 1983
The prima facie measure of damages for conversion of a chattel is the market value of the chattel at the time of its conversion. . .
Cited – Malhotra v Dhawan CA 26-Feb-1997
There had been litigation as to the payment due on fees earned during the partnership. One party had destroyed the evidence which would have settled many issues. The court discussed the principle that it should presume all against a destroyer of . .
Cited – Dover District Council v Sherred and Another CA 5-Feb-1997
In the context of an application to condemn a property as unfit for human habitation, the court was asked to consider ‘whether the County Court judge should adopt what he called ‘a commonsense, lay, factual approach’ in cases of this sort, or . .
Cited – Senate Electrical Wholesalers Ltd v Alcatel Submarine Networks Ltd (Formerly STC Submarine Systems Ltd) CA 20-Dec-1996
. .
Appeal from – Zabihi v Janzemini and others ChD 28-Nov-2008
The claimant sought the return of jewellery of substantial value. The defendants said that they had been returned or sold and accounted for.
Held: The court must do its best on such evidence as it feels able to accept to place some kind of . .
Cited – Thwaytes v Sotheby’s ChD 16-Jan-2015
The claimant had sold a painting through the defendant auctioneers. He sought damages after it was certified to be an original rather than copy Caravaggio painting, and worth very substantially more. . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.371880
The defendant appealed an award of damages to the claimant after a road accident. He had been constructing a boat, and had reduced earnings during this period.
Held: This was a classic case for a Smith v Manchester-type award, rather than the selection of a multiplicand even on an ‘educated guess’ basis. The claimant had undoubtedly suffered reduced earning capacity and was at a disadvantage in the future labour market and the development of his career, but the level of his actual earnings loss depended on how far he sought to decide to work full-time and/or to develop his career in a way which had not been demonstrated before the accident. The award was reduced accordingly.
Lord Justice Potter Lady Justice Arden And Lord Justice Keene
[2003] EWCA Civ 994
Judicial Studies Board Guidelines for the Assessment of Damages in Personal Injury Cases
England and Wales
Updated: 19 November 2022; Ref: scu.184459
The case concerned the meaning of the phrase ‘compensation for earnings lost’ as it applied to self employed persons.
Held: The fact that a person’s accounts described fees as turnover, did not prevent them being still earnings within the Act.
Lord Justice Brooke Lady Justice Hale Mr Justice Wilson
[2003] EWCA Civ 729, Times 04-Aug-2003
Social Security (Recovery of Benefits) Act 1997 Sch2 Col1
England and Wales
Cited – Russell v Town and County Bank HL 1888
Lord Herschell said: ‘The profit of a trade or business is the surplus by which the receipts from the trade or business exceed the expenditure necessary for the purpose of earning those receipts.’ . .
Cited – British Transport Commission v Gourley HL 1955
It is a universal rule that the plaintiff cannot recover more than he has lost and that realities must be considered rather than technicalities. The damages to be awarded for personal injury including loss of earnings should reflect the fact that . .
Cited – Williams v Devon County Council CA 18-Mar-2003
The claimant had recovered damages, but was ordered to pay costs since she had recovered less than was paid in. She appealed.
Held: There were anomalies in the system with regard to the recoverable social security benefits. The sums . .
Cited – Lim Poh Choo v Camden and Islington Area Health Authority HL 21-Jun-1979
The plaintiff was catastrophically injured. Her life expectation was not affected, but she would never be able to work at her expected profession as a doctor, and was entitled to recover for loss of earnings. The defendant said that there was in . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.185468
Group litigation between the appellant passengers and the respondent carriers. Most of the passengers allege that they have suffered deep vein thrombosis leading to serious injury, as a result of travelling in the carriers’ aircraft. In some particularly tragic cases the DVT proved fatal and the claim is brought by the personal representatives of the passenger.
Lord Phillips of Worth Matravers MR
[2003] EWCA Civ 1005, [2004] 1 Lloyds Rep 316, [2004] 1 All ER 445, [2003] 2 CLC 884, [2003] 3 WLR 956, [2003] PIQR P35, (2004) 76 BMLR 38, [2004] QB 234, [2004] 1 All ER (Comm) 459
England and Wales
See Also – In re Deep Vein Thrombosis and Air Travel Group Litigation QBD 20-Dec-2002
The claimants claimed to have suffered deep vein thrombosis having been sat in cramped conditions for long periods whilst travelling by air. They sought compensation, saying that the failure by the airlines to warn them and take steps to minimise . .
See Also – In re Deep Vein Thrombosis and Air Travel Group Litigation CA 3-Jul-2003
Passengers on air flights who had suffered deep vein thrombosis through inactivity whilst travelling sought damages.
Held: The claim in its nature was for something unrelated to any particular event. The word ‘accident’ necessitated some sort . .
See Also – Deep Vein Thrombosis and Air Travel Group Litigation HL 8-Dec-2005
The appellants had suffered deep vein thrombosis whilst travelling on long haul air flights. The defendants said that their liability was limited because the injuries were not accidents.
Held: The claimants’ appeal failed. The definition of . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.184819
There was a claim for damages in respect of psychiatric injury said to result from a breach of the implied term of trust and confidence, which was asserted to be recoverable notwithstanding Johnson, on the basis that the acts of the employer complained of could be severed from the employer’s conduct leading to the dismissal, and thus found a claim.
Held: The acts/conduct complained of could not be so severed. In Johnson the majority in the House of Lords held that unfairness in the manner of dismissal of an employee does not give rise to a common law action, whether it be founded in contract or in tort, but must be the subject of Employment Tribunal proceedings. The implied term of trust and confidence cannot be used in connection with the way the employer/employee relationship is terminated. There may be cases where the particular manner in which an employee is dismissed or the circumstances attending dismissal is or are confined to events occurring at the same time or immediately before the dismissal. In other cases that manner and those circumstances may include a pattern of events stretching back over a period. It is a question of fact for the trial judge to determine in each case. The claimant fell within the latter categor
Peter Gibson LJ
[2002] IRLR 447, [2002] EWCA Civ 463, [2003] ICR 520, [2002] Emp LR 795
England and Wales
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
Appealed to – Eastwood and another v Magnox Electric plc; McCabe v Cornwall County Council and others HL 15-Jul-2004
The first claimants were long standing employees. Mr Eastwood fell out with his manager, who disciplined him using false statements. When Williams refused to provide a false statement he too was disciplined. Each claimed damages for the injury to . .
Cited – Dunnachie v Kingston Upon Hull City Council; Williams v Southampton Institute; Dawson v Stonham Housing Association EAT 8-Apr-2003
EAT Unfair Dismissal – Compensation
In each case, The employee sought additional damages for non-economic loss after an unfair dismissal.
Held: The Act could be compared with the Discrimination Acts . .
Appeal from – Eastwood and another v Magnox Electric plc; McCabe v Cornwall County Council and others HL 15-Jul-2004
The first claimants were long standing employees. Mr Eastwood fell out with his manager, who disciplined him using false statements. When Williams refused to provide a false statement he too was disciplined. Each claimed damages for the injury to . .
Cited – Edwards v Chesterfield Royal Hospital NHS Foundation Trust CA 26-May-2010
The claimant, a consultant doctor, sought damages saying that his employer had failed to follow the contract when disciplining and dismissing him. The GMC had dismissed as unfounded the allegation on which the dismissal was based. He sought damages . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.183849
The claimant had been unfairly dismissed but in addition to this employment she had also lost her earnings from a private practice as an aerobics teacher at the same facility where she was employed. She had been awarded damages for the employment loss, but not the rest.
Held: The court did not state as a proposition of law that no award could ever be made under Section 123 for loss of self-employed earnings or, at any rate, the loss of an opportunity to earn them. There could be a situation under a contract of employment where the opportunity to earn other money, using the employer’s facilities, in a self-employed capacity, could come within Section 123 when an award was quantified. However, on the facts of this case the Tribunal were entitled to hold on an application of Section 123 that the very large earnings as a self-employed person by an appellant employed for only one or two shifts a week were not within the terms of the section.
Lady Justice Butler-Sloss, Lord Justice Pill, The Lord Lloyd Of Berwick
[1998] EWCA Civ 1037
Employment Rights Act 1996 123
England and Wales
Cited – Norton Tool Co Ltd v Tewson NIRC 30-Oct-1972
(National Industrial Relations Court) The court was asked to calculate damages on a dismissal, and particularly as to whether the manner of the dismissal should affect the damages.
Held: The common law rules and authorities on wrongful . .
Cited – Leonard v Strathclyde Buses Ltd 1998
To receive a compensatory award, a claimant must provide proof of loss. Referring to Norton Tool, Lord Blofeld said: ‘The approach . . has, as we understand the position, governed the attitude of tribunals to compensation ever since. It is, in our . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.144516
(New Zealand) A company was sold with a warranty that the sales figures would meet projected earnings. The purchaser successfully complained after the event that the figures were false and misleading. They appealed an order increasing the damages on the basis that the earnings figures had been manipulated. The order stood. The proper measure of damages was at the level of what properly calculated projected earnings would have been. The figures might be averaged for other factors, but otherwise stood. There is no connection between the range of foreseeable deviation in a given forecast and the question of whether the forecast was properly prepared. Whether a forecast was negligent or not depends upon whether reasonable care was taken in preparing it. It is impossible to say in the abstract that a forecast of a given figure ‘would not have been negligent.’
Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Hoffmann, Sir John May, Sir Ralph Gibson
Times 16-May-1996, Gazette 26-Jun-1996, [1996] UKPC 9, [1996] 1 WLR 1438
Distinguished – Senate Electrical Wholesalers Ltd v Alcatel Submarine Networks Ltd (Formerly STC Submarine Systems Ltd) CA 22-Jun-1998
Where damages were to be awarded for breach of warranty on sale of goodwill, an assessment according to a price earnings ratio was appropriate only if used in the contract or agreed as appropriate by the experts. In the context of a notice clause in . .
Cited – Goldstein v Levy Gee ( A Firm) ChD 1-Jul-2003
There had been a dispute between shareholders, and the defendant was called upon to value the company. He issued a tender for valuers to value the properties. Complaint was made that the tender was negligent in its description of the basis for . .
Cited – Curry’s Group Plc v Martin QBD 13-Oct-1999
The valuer valued a lease for a rent review clause, after advice, on the basis that the rent stated was to be a headline rent. The claim was dismissed because a valuer acting in such a situation was not substantially different from one undertaking a . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.159165
The plaintiff sought an extension of time to apply for leave to appeal against the level of damages awarded to him after his wrongful imprisonment by the defendant.
Held: Refused: ‘I do not see that there is any point which is reasonably arguable before the full court if leave were granted.’
Kennedy, Morritt LJJ
[1998] EWCA Civ 1102
England and Wales
Updated: 19 November 2022; Ref: scu.144581
Defendant’s appeal from an order for the payment out of court of the sum of pounds 2,500 and made consequential orders as to costs.
Stuart-Smith LJ
[1998] EWCA Civ 1064, [1998] 3 All ER 631, [1999] 1 WLR 53
Social Security (Recoupment) Regulations 1990
England and Wales
Updated: 19 November 2022; Ref: scu.144543
Temporary, if damaging disturbance which fell short of actual damage to a neighbour’s land and which was caused by works executed on land which had been purchased compulsorily, was not normally claimable and not by the owner of only a temporary interest.
Gazette 08-Jul-1998, Gazette 17-Jun-1998, Times 22-Jun-1998, [1998] EWCA Civ 978, [1998] 3 All ER 638
England and Wales
Cited – Andreae v Selfridge and Co Ltd CA 1938
The plaintiff had a hotel. The rest of the island had been acquired by the defendant which was demolishing and rebuilding the other properties. The plaintiff complained, and the judge found, that by reason of the operations, which involved noise and . .
Appeal from – Wildtree Hotels Ltd and others v Harrow London Borough Council HL 22-Jun-2000
The compensation which was payable for disturbance, when works were carried out on land acquired compulsorily, did not extend to the damage caused by noise dust and vibration arising from the works. Where however damage could be brought within the . .
Cited – Moto Hospitality Ltd v Secretary of State for Transport CA 26-Jul-2007
The company sought damages to its business on a motorway service station when works closed an access road.
Held: The Secretary of State’s appeal succeeded. A claim for compensation under section 10 had not been established, at least in respect . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.144457
Damages for distress falling short of physical injury should be recovered as an element of any aggravated damages, not as part of the basic award. A failure to discipline a police officer responsible for the injury was not capable of aggravating the claim.
Times 26-Jun-1998, [1998] EWCA Civ 946
England and Wales
Cited – Independent Assessor v O’Brien, Hickey, Hickey CA 29-Jul-2004
The claimants had been imprisoned for many years before their convictions were quashed. They claimed compensation under the Act. The assessor said that there should be deducted from the award the living expenses they would have incurred if they had . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.80800
Where damages were to be awarded for breach of warranty on sale of goodwill, an assessment according to a price earnings ratio was appropriate only if used in the contract or agreed as appropriate by the experts. In the context of a notice clause in a Share Sale Agreement requiring notice to set out ‘such particulars of the grounds on which such claim is based as are then known to the Purchaser promptly . . and in any event within 18 months’, the court held that ‘The clear commercial purpose of the clause includes that the vendors should know . . in sufficiently formal written terms that a particularised claim for breach of warranty is to be made so that they may take such steps as are available to them to deal with it . . The commercial purpose may not be sensibly served if an uninformed and uninformative notice is given.’
Stuart-Smith LJ
Times 26-Jun-1998, [1999] 2 Lloyd’s Reports 243, [1998] EWCA Civ 3534
England and Wales
Distinguished – Lion Nathan Limited and others v C C Bottlers Limited and others PC 14-May-1996
(New Zealand) A company was sold with a warranty that the sales figures would meet projected earnings. The purchaser successfully complained after the event that the figures were false and misleading. They appealed an order increasing the damages on . .
See also – Senate Electrical Wholesalers Ltd v Alcatel Submarine Networks Ltd (Formerly STC Submarine Systems Ltd) CA 20-Dec-1996
. .
Cited – Thomas Witter v TBP Industries Ltd ChD 15-Jul-1994
An award of damages for misrepresentation required that there had at some time been a right of rescission, not necessarily a continuing right to rescind.
An acknowledgement of non-reliance clause has become a common part of modern commercial . .
Cited – Laminates Acquisition Co v BTR Australia Ltd ComC 31-Oct-2003
The claimant sought damages for breach of a company share sale agreement. The seller had given a warranty that it was not involved in any undisclosed litigation. An anti-trust investigation had been begun in the US.
Held: In this case the . .
Cited – Forrest and others v Glasser and Another CA 31-Jul-2006
The claimants appealed a preliminary decision against them as to whether they had correctly served a sufficient notice of their intention to make a claim in a commercial investment syndicate agreement.
Held: The claimants’ solicitor had . .
Cited – Zabihi v Janzemini and Others CA 30-Jul-2009
The claimant said that he had left valuable jewelry with the defendant for sale. The defendant said at first they had been stolen, but then returned jewelry which the claimant denied was what had been left. The defendant appealed a finding that he . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.89169
Martin Chamberlain QC
[2018] EWHC 111 (QB)
England and Wales
Updated: 19 November 2022; Ref: scu.604799
[2013] EWHC 299 (QB)
England and Wales
Updated: 19 November 2022; Ref: scu.471304
Availability of award of damages for emotional distress after wrongful obtaining of freezing order. Fact dependent.
Judge Pelling QC sitting as a judge of the High Court
[2012] EWHC 3525 (Ch), [2012] WLR(D) 375, [2013] 2 WLR 1368, [2013] 1 Ch 455
England and Wales
Updated: 19 November 2022; Ref: scu.470137
[2008] EWHC 3311 (QB)
England and Wales
Updated: 19 November 2022; Ref: scu.427045
A layer of hydrochloric acid had leaked on to the deck of a ship. The port authorities required the vessel to be decontaminated of the acid before she could sail. The defendants applied to have the claim struck out.
Held: Mance J considered criminal case law to see whether there had been any physical damage: ‘the criminal test is one of fact and degree . . Relevant considerations are whether there has been ‘injury impairing value and usefulness’ of the property in question, and the need for work and the expenditure of money to restore the property to its former usable condition is material’.
Mance J
[1995] 2 Lloyds Rep 395
England and Wales
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.331083
The Secretary of State appealed against an order awarding damages for the state’s breach of European Community law.
Lord Woolf MR, Scjiemann, Robert Walker LJJ
[1998] EWCA Civ 1971, [1998] Eu LR 456, [1998] 3 CMLR 192, [1998] COD 381, [1999] 2 All ER 640
England and Wales
Updated: 19 November 2022; Ref: scu.268846
Application for permission to appeal in case on the valuation of shares.
[2001] EWCA Civ 262
England and Wales
Updated: 18 November 2022; Ref: scu.200848
The applicants had a business processing whelks. After the loss of the Sea Empress, an order was made prohibiting the sale of seafood from the area. They appealed a refusal of compensation for their losses. The respondents would be liable to make recompense if the loss could be said to be ‘damage caused by contamination resulting from the discharge or escape’ of oil.
Held: The liability imposed by the Act is limited to the area surrounding the accident. The claim for damage was too remote.
Lord Justice Kennedy, Lord Justice Chadwick, Lord Justice Mance
Times 27-Feb-2003, [2003] EWCA Civ 65, Gazette 03-Apr-2003, [2003] 1 Lloyd’s Rep 327, [2003] 1 CLC 325, [2003] 2 All ER (Comm) 1
Merchant Shipping Act 1995 Sch4 153, Hague Rules
England and Wales
Appeal from – Alegrete Shipping Co Inc (Owners of the Ship ‘Sea Empress’) and Another v The International Oil Pollution Compensation Fund 1971 and others AdCt 29-May-2002
The claimants sought recovery of their loss profits under an insurance policy, after the loss of the Sea Empress.
Held: Their claim for loss of profits did not constitute ‘damage caused . . by contamination resulting from the discharge or . .
Cited – Landcatch Limited v The Braer Corporation and Williams and Jones and Hudner and Assurance Foreningen Skuld and the International Oil Pollution Compensation Fund IHCS 19-May-1999
The pursuers raised freshwater salmon (smolt) to the age of two before selling them on. An oil spill prevented them trading. They appealed a refusal of damages on the baiss that this was pure relational economic loss.
Held: The appeal failed. . .
Appealed to – Alegrete Shipping Co Inc (Owners of the Ship ‘Sea Empress’) and Another v The International Oil Pollution Compensation Fund 1971 and others AdCt 29-May-2002
The claimants sought recovery of their loss profits under an insurance policy, after the loss of the Sea Empress.
Held: Their claim for loss of profits did not constitute ‘damage caused . . by contamination resulting from the discharge or . .
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 November 2022; Ref: scu.179012
Mr Justice Keene Lord Justice Schiemann
[2003] EWCA Civ 232
England and Wales
Updated: 18 November 2022; Ref: scu.179562
A land owner who was aware of his rights under a restrictive covenant, and who stood by whilst a riding school was erected in breach of the covenant, was not later to be allowed injunctive mandatory relief to enforce the covenant, by virtue of his acquiescence. The measure of damages questions involved in such cases is a matter of judgment which is incapable of strictly rational and logical exposition from beginning to end. The primary basis of assessment ‘is to consider the sum that would have been arrived at in negotiations between the parties had each been making reasonable use of their respective bargaining positions without holding out for unreasonable amounts.’ A claimant may lose his entitlement to claim damages if he has been guilty of such acquiescence as to make it in all the circumstances unconscionable for him to rely upon his legal right.
Nourse LJ, Pill LJ, Thorpe LJ
Gazette 20-Oct-1999, Times 01-May-1998, Gazette 28-May-1998, [1998] EWCA Civ 666, [1998] 3 EGLR 75, [1999] 41 EG 159, [1999] 77 P and CR 73
England and Wales
Applied – Shaw v Applegate CA 1977
There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and . .
Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
Cited – Small v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
Cited – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
Cited – Jones v Stones CA 11-May-1999
No defence of acquiescence or estoppel arose from a failure by a land owner to pursue a complaint. Such a defence could only be established by some positive act of encouragement or allowance by him. The heart of the action lay in the allowance of a . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 November 2022; Ref: scu.144144
Psychiatric damage following the death of a son after alleged negligence by defendant.
Roch LJ, Aldous LJ, Brooke LJ
[1998] EWCA Civ 733
England and Wales
Cited – Hinz v Berry CA 1970
Then plaintiff saw her husband killed and her children injured by a runaway motor car. At trial she was awarded damages for nervous shock. The question was whether, having regard to the fact that she had suffered sorrow and grief it would not be to . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 November 2022; Ref: scu.144211
The Court has no power under the Supreme Court Act to award interest on damages sums recoverable by the Plaintiff but which had been paid before the commencement of proceedings
Waller LJ
Times 28-May-1998, Gazette 17-Jun-1998, [1998] EWCA Civ 862, [1998] 3 WLR 457, [1999] QB 297, [1998] 3 All ER 203
England and Wales
Updated: 18 November 2022; Ref: scu.144341
Times 17-Nov-1999
England and Wales
Appeal from – Little and others v Messrs George Little Sebire and Co CA 14-Jun-2001
The defendant accountants appealed a finding of professional negligence. They had organised schemes with respect to tax saving for their client companies.
Held: The judge was correct to reject the defendant’s argument that the company could . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 November 2022; Ref: scu.83091
Judgment as to interest after principal judgment.
Teare J
[2013] EWHC 867 (Comm)
Updated: 17 November 2022; Ref: scu.472971
The claimant had obtained judgment in default against the respondent in his claim under the 1998 Act. He now appealed as to the levels of damages to be awarded.
Arden, Lloyd, LJJ, Ryder J
[2013] EWCA Civ 333
England and Wales
Updated: 17 November 2022; Ref: scu.472893
The court rejected an attempt to recover the damages which the plaintiff had been found liable to pay to two women whom he had subjected to criminal attacks. The damages were too remote. But the claim would also have been rejected on the public policy ground that the plaintiff was not entitled to be indemnified for the damages which he was liable to pay as a result of his criminal attacks.
Woolf J
[1986] 1 All ER 943
England and Wales
Cited – Meah v McCreamer (No 1) QBD 1985
The claimant had suffered serious brain damage as a result of the defendant’s negligence, resulting in a personality change which caused him to commit offences for which he was imprisoned. He sought damages for that imprisonment.
Held: Woolf J . .
Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered psychiatric injury in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had later gone on to kill another person, and he had been detained under section 41. . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.347285
Claimants’ application dated 2 March 2009 for the hearing of two preliminary issues in the inquiry as to damages in a trade mark infringement action, which was decided largely in favour of the claimants.
[2009] EWHC 1213 (Pat)
England and Wales
Updated: 14 November 2022; Ref: scu.346892
Stadlen J
[2009] EWHC 75 (Admin)
Law Reform (Miscellaneous) Provisions Act 1934, Fatal Accidents Act 1976
England and Wales
Updated: 14 November 2022; Ref: scu.280423
[1998] EWCA Civ 503
England and Wales
Cited – Dureau v Evans CA 1996
The court considered the difficulty of quantifying damages in cases involving multiple injuries.
Kennedy LJ said: ‘Help is to be obtained from any source where it happens to be available. To a limited extent, in a case where there are multiple . .
Cited – Clenshaw v Tanner and others CA 27-Nov-2002
The claimant was a cyclist. He passed along inside a line of traffic, and collided with a lorry turning left into a petrol station ahead of him, suffering serious injuries. He appealed against a finding that the lorry driver had signalled and that . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.143981
Damages for the torts of deceit and conspiracy
[2017] EWHC 3803 (QB)
England and Wales
Updated: 14 November 2022; Ref: scu.620057
The parties had agreed for the purchase of land, but the buyer, Mr Oates, failed to complete. A notice to complete was served, and on non-compliance, the repudiation was accepted. It proved difficult to resell, and they suffered substantial losses. The court was now asked whether the damages were to be measured by reference to the value at the date of the breach, or to some later date, when in this case, the vendor’s subsewuent losses would be included.
Held: The judge had been right to reject the suggestion that the breach date was decisive.
Lloyd, Leveson, Toulson LJJ
[2013] EWCA Civ 91, [2013] 3 All ER 211, [2013] 1 P andCR DG22, [2013] 1 EGLR 93, [2014] 2 WLR 743, [2013] 9 EG 93, [2013] WLR(D) 72, [2013] 16 EG 108, [2014] Ch 287
England and Wales
Cited – Laird v Pim and Another 18-Jan-1841
Where a party has been let into possession of lands under a contract of purchase, but does not complete the purchase, and refuses to pay the purchase-money, and no conveyance is executed, the vendors cannot recover from him the whole amount of the . .
Cited – Laird v Birkenhead Railway Co 22-Nov-1859
The plaintiff applied to the defendant railway company for permission to construct and use a private branch line connecting with the railway company’s main line. Agreement was reached for the plaintiff to do so ‘on reasonable terms, which were to be . .
Cited – Johnson v Agnew HL 1979
The seller had obtained a summary order for specific performance of a contract for the sale of land against the buyer.
Held: The breach was continuing and was still capable of being remedied by compliance with the order for specific . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.472108
EAT UNFAIR DISMISSAL – Calculation of compensatory award
Having been unfairly dismissed, the employee took short term lower paid employment. But after a few weeks she fell ill and incapable of work. The Employment Tribunal made a compensatory award of 40 weeks from dismissal assessed at the difference between her old and new pay rates. On appeal, the employer argued:
(1) Supervening and incapacitating ill-health should have triggered a cut-off to the compensatory award; or
(2) After she became ill, the former employee suffered no loss because she received statutory sick pay from the new employer at same rate the old employer would have paid.
Appeal allowed on ground 2. Compensatory award reduced to actual loss (i.e. difference between old pay and new pay for the weeks the employee had been able to work).
Appeal did not succeed on ground 1 because the law recognised no such cut-off.
Luba QC R
[2013] UKEAT 0382 – 12 – 2301
England and Wales
Updated: 14 November 2022; Ref: scu.471778
Calculation of compensation to be awarded on compulsory acquisition of of strip of land.
[1998] EWCA Civ 399
England and Wales
Updated: 14 November 2022; Ref: scu.143877
EAT JURISDICTIONAL POINTS- Agency relationships
RACE DISCRIMINATION
Direct
Injury to feelings
Accepted, in line with EAT authority, that common law agency principles apply to Race Relations Act s32(1). On that basis employer appeal against agency finding upheld and set aside.
Injury to feelings award manifestly excessive and wrong in principle (see Vento). Award reduced from andpound;12,000 to andpound;6,000.
Peter Clark J
[2013] UKEAT 0249 – 12 – 1103
England and Wales
Cited – Vento v The Chief Constable of West Yorkshire Police (No 2) CA 20-Dec-2002
The claimant had been awarded damages for sex discrimination, including a sum of andpound;25,000 for injury to feelings. The respondent appealed.
Held: The Court of Appeal looked to see whether there had been an error of law in the employment . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.471580
EAT UNFAIR DISMISSAL – Polkey deduction
AGE DISCRIMINATION – Dismissal
VICTIMISATION – Post-employment
FACTS
The employee was dismissed on grounds of retirement, having reached an age over 65.
A failure by the employer to follow statutory procedures in relation to age-related retirement led to findings by an Employment Tribunal of unfair dismissal and of unlawful age discrimination.
The Employment Tribunal rejected a claim for victimisation (in the form of giving an adverse reference in consequence of the unfair dismissal claim being lodged) as the Equality Act 2010 did not make a remedy available for post-employment victimisation: section 108(7).
THE APPEALS
The employer appealed from the failure of the Employment Tribunal to make any deduction in the compensation awarded – to reflect the likelihood of the employee being fairly dismissed had the correct procedures been followed.
The employee cross-appealed from the rejection of the victimisation claim and the Equality and Human Rights Commission intervened in support of the cross-appeal.
RESULT
Appeal allowed for want of adequate reasoning by the Employment Tribunal as to why no reduction in the compensation had been made. Assessment of compensation remitted.
Cross-appeal dismissed. The 2010 Act provides no remedy for post-employment victimisation.
Rec Luba QC
[2012] UKEAT 0112 – 12 – 0503, [2013] IRLR 439, [2013] Eq LR 438, [2013] ICR 807
England and Wales
Cited – Polkey v A E Dayton Services Limited CA 1986
The employee had been made redundant with no attempt at consultation and in breach of procedures.
Held: His claim of unfair dismissal was dismissed because even if the procedures had been followed, the result would have been the same. What . .
Appeal from – Jessemey v Rowstock Ltd and Another CA 26-Feb-2014
The court was asked whether a claim as to acts of victimisation could be sustained in connection with actions alleged after termination of employment.
Held: The appeal succeeded. The Act operated to proscribe such actions. However, this is one . .
Applied – Akwiwu and Another v Onu EAT 1-May-2013
EAT Race Discrimination : Direct
Indirect
Post Employment
UNLAWFUL DEDUCTION FROM WAGES
NATIONAL MINIMUM WAGE
WORKING TIME REGULATIONS
The Claimant was a Nigerian woman who had . .
Cited – Onu v Akwiwu and Another CA 13-Mar-2014
Two claimants, Nigerian women, came illegally to work as domestics. They suffered severe abuse by their employers. Whilst each received substantial awards, they appealed now from rejection of their claims for discrimination based upon the advantage . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.471352