The innocent plaintiff buyers had been found to have failed to mitigate their damages because they had not accepted an offer from the defendant sellers (who were in breach of contract) to supply goods on cash terms, the contract having originally provided for sales on credit. the plaintiffs submitted that as a matter of law they had not been bound to consider any offer made by the defendants because of their prior conduct.
Held: Whether a plaintiff or applicant has taken reasonable steps to mitigate his loss is a question of fact and not of law. He may not have to risk starting uncertain litigation himself, but might have to consider an offer made by the wrongdoer himself.
Bankes LJ said: ‘It is plain that the question what is reasonable for a person to do in mitigation of his damages cannot be a question of law but must be one of fact in the circumstances of each particular case. There may be cases where as [a] matter of fact it would be unreasonable to expect a plaintiff to consider any offer made in view of the treatment he has received from the defendant. . But that is not to state a principle of law, but a conclusion of fact to be arrived at on a consideration of all the circumstances of the case.’
Scrutton LJ said: ‘Whether it be more correct to say that a plaintiff must minimize his damages, or to say that he can recover no more than he would have suffered if he had acted reasonably, because any further damages do not reasonably follow from the defendant’s breach, the result is the same . . Mr Matthews [for the plaintiff] has contended that in considering what steps should be taken to mitigate the damage all contractual relations with the party in default must be excluded. That is contrary to my experience . . in commercial contracts it is generally reasonable to accept an offer from the party in default. However, it is always a question of fact. About the law there is no difficulty.’
Bankes LJ, Scrutton LJ
[1919] 2 KB 581, 121 LT 563
England and Wales
Cited by:
Cited – Sembawang Corp Ltd v Pacific Ocean Shipping Corp and Another ComC 25-Nov-2004
. .
Cited – Wilding v British Telecommunications Plc CA 19-Mar-2002
The employee challenged the Employment Tribunal’s finding, upheld by the EAT, that he had not acted reasonably in refusing an offer of re-employment made by his employer.
Held: The appeal failed. Potter LJ said: ‘As was made clear in the . .
Cited – Wilding v British Telecom Plc EAT 2-Apr-2001
EAT Disability Discrimination – Compensation . .
Cited – Sotiros Shipping Inc v Sameiet; The Solholt CA 1983
The seller had failed to deliver the vessel he had sold by the delivery date. The buyer cancelled and requested return of his deposit, also claiming damages because the vessel was worth $500,000 more on the delivery date than she had been when the . .
Cited – Lock v Connell Estate Agents EAT 10-May-1994
The employee had failed to meet targets in a difficult sales market. He was dismissed. The ET had found that the sales targets were impossible. The EAT considered what was the effect of his failure to appeal against his dismissal.
Held: The . .
Cited – Standard Chartered Bank v Pakistan National Shipping Corporation; Seaways Maritime Limited; Oakprime International Limited; Arvind Mehra and Sgs United Kingdom Limited CA 26-Jan-2001
As part of its attempt to mitigate its loss caused by deceit perpetrated in relation to it by the defendants, the claimant bank presided over the sale of a cargo of bitumen in Vietnam. To do this, it sent one of its officers, to Vietnam on two . .
Cited – Iggleden v Fairview New Homes (Shooters Hill) Ltd TCC 1-Jun-2007
The claimants bought a newly built home from the defendants. Defects were alleged and admitted, but the defendants said the claimants had failed to mitigate their losses or accept offers to have work done. The claimants now sought leave to add . .
Cited – Driskel v Peninsula Business Services Ltd and Another EAT 7-Dec-2001
The claimant sought leave to appeal against a finding that though there had been serious sex discrimination, the affect on her had been low, and the damages for injury to feelings reduced accordingly.
Held: The appeal was dismissed. The . .
Cited – Driskel v Peninsula Business Services Ltd Michael Huss Anthony Sutcliffe, Peter Done EAT 17-Dec-1999
EAT The claimant said that she had been subjected to crass sexual banter by her senior manager. She refused to take up a post unless he was moved, and when he declined to so, she was dismissed.
The court . .
Cited – Borealis Ab v Geogas Trading Sa ComC 9-Nov-2010
The parties had contracted for sale and purchase of butane for processing. It was said to have been contaminated. The parties now disputed the effect on damages for breach including on causation, remoteness, mitigation and quantum.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Damages
Updated: 10 December 2021; Ref: scu.263200