Part Two Compensation, s.Three Miscellaneous Issues Relevant to Compensatory Damages, 18 Negotiating damages

Subject(s):

Calculation of damages — Types of damages — Loss of chance and damages — Loss of profit and damages

This chapter focuses on ‘negotiating damages’. These are damages assessed according to the price which, prior to the wrong, the claimant could reasonably have charged the defendant for releasing the defendant from the duty that has been broken. The Supreme Court in Morris-Garner v One Step (Support) Ltd has authoritatively ruled that these damages are compensatory. The principal puzzles regarding negotiation damages have revolved around two main linked uncertainties. First, what is the purpose of such damages? Are they compensatory (ie, covering the claimant’s loss)? Or is it more realistic to regard negotiating damages as restitutionary (ie, reversing gains made by the defendant) rather than compensating loss? Second, when can such damages be awarded (ie, what is their availability)? The chapter examines, and seeks answers to, both those puzzles.