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Oxford Law Citator
Contents
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Preliminary Material
Dedication
Preface to the fourth edition
Contents
Table of Cases
Decisions of the European Court of Justice
Table of Legislation
United Kingdom
Statutes
Statutory Instruments
National Legislation
France
New Zealand
Trinidad and Tobago
United States of America
European Legislation
Conventions
Regulations
Directives
International Principles
Restatements (American Law Institute)
Main Text
Part One Introduction
1 General
Preliminary Material
1 Judicial remedies
2 Procedure
3 Enforcement
4 Orders made to assist the claimant in collecting evidence to establish its case
5 Torts and breach of contract
6 Concurrent liability between the tort of negligence and breach of contract
7 Should one continue to distinguish torts and breach of contract?
8 The primary functions of judicial remedies for torts and breach of contract
9 Legal and equitable remedies
10 Equitable wrongs
11 Combining remedies
12 Breach of European Union law
13 Economic analysis, bargaining around non-monetary remedies, and the consumer surplus
14 Corrective justice, civil recourse, and rights
15 Approach and methodology
16 The layout of the book
2 The impact of the Human Rights Act 1998
Preliminary Material
1 Introduction
2 A non-tortious public wrong
3 The assessment of damages for the HRA cause of action
Part Two Compensation
s.One General Principles in Assessing Compensatory Damages
3 Introduction to compensatory damages
Preliminary Material
1 Compensation, compensatory damages, and types of loss
2 The compensatory aims
3 Theoretical underpinnings of compensation
(1) Breach of contract
(2) Torts
4 Damages valuing the right infringed?
5 A non-compensatory cost of cure?
4 Factual causation
Preliminary Material
1 Introduction
2 The ‘but for’ test
3 Additional sufficient events
4 Material increase of risk
5 Proof of loss and loss of a chance
Preliminary Material
1 Introduction
2 Uncertainty about past fact: balance of probabilities
3 Future or hypothetical events: assessment proportionate to the chances?
(1) Introduction
(2) Examples of damages for loss of a chance
(a) Loss of profits in contract
(b) Pure economic loss in the tort of negligence
(c) Loss consequent on an actionable personal injury or death
(3) The scale of proportionate damages
(4) The claimant’s hypothetical conduct
(5) The defendant’s hypothetical conduct: the minimum obligation principle
4 Miscellaneous points
(1) Sometimes loss is presumed
(2) Difficulty of assessment is not a bar
6 Contractual reliance damages
Preliminary Material
1 Introduction
2 Protection of the reliance interest where direct protection of the expectation interest is barred
3 Protection of the reliance interest even when direct protection of the expectation interest is not barred
4 No escape from a known bad bargain
5 Pre-contractual expenses
7 Principles limiting compensatory damages
Preliminary Material
1 Introduction
2 Remoteness
(1) Torts
(a) The Wagon Mound ‘reasonable foreseeability’ test
(b) The application of the ‘reasonable foreseeability’ test
(c) Is ‘reasonable foreseeability’ the test for remoteness for all torts?
(d) A stricter test where there is concurrent contractual liability
(2) Breach of contract
(a) The traditional test for remoteness in contract
(b) Type of loss or damage
(c) The principle in Cory v Thames Ironworks Co
(d) Disproportionate loss compared to the contractual consideration: the US approach
(e) The qualification of the traditional contract test required by The Achilleas
(i) The rejection of a test of acceptance of liability as a term of the contract
(ii) The Achilleas
(iii) Understanding ‘assumption of responsibility’
(f) Assimilation of the contract and tort tests where there is a contractual relationship
3 Intervening cause
(1) Intervening natural events
(2) Intervening conduct of a third party
(a) The duty was to guard against such a third party intervention
(b) Third party intervention other than where there was a duty to guard against it
(3) Intervening conduct of the claimant
(a) Unreasonable acts
(b) Reasonable acts
(c) Contributory negligence?
4 The SAAMCO principle
(1) Introduction
(2) SAAMCO and the SAAMCO principle
(3) Is the SAAMCO principle justified?
(4) Scope of application and difficulties in applying SAAMCO
5 The duty to mitigate
(1) The first principle—unreasonable inaction
(2) The second principle—unreasonable action
(3) Loss that would have been suffered even if the claimant had complied with the ‘duty’ to mitigate
(4) When does the duty to mitigate arise in relation to the anticipatory repudiation of a contract?
6 Contributory negligence
(1) Torts
(a) What must the defendant establish?
(b) How do the courts decide the extent to which the damages should be reduced?
(c) Is contributory negligence applicable to all torts?
(2) Breach of contract—does contributory negligence apply?
7 The demise of impecuniosity as a limitation
8 Compensating advantages
Preliminary Material
1 Introduction
2 Indirect compensating advantages are not deducted
3 Some compensating advantages provided by third parties are not deducted
(1) General factors influencing the courts
(2) Social security benefits
(3) Non-state payments
9 Form of compensatory damages, date for assessment, taxation
Preliminary Material
1 The form of compensatory damages
(1) Once-and-for-all assessment: the general rule and its exceptions
(a) The general rule
(b) Arguments for and against the once-and-for-all rule
(c) Provisional damages
(d) Structured settlements
(e) (Reviewable) periodical payments
(f) Interim payments
(2) Damages must be awarded unconditionally
2 The date for the assessment of compensatory damages
(1) Is there a time after which the court assessing damages is barred from taking into account events that have already occurred?
(2) Which value of money, property, or services do the courts apply in assessing damages?
(a) Changes in the value of property or services or in the internal value of money
(i) Non-pecuniary loss
(ii) Pecuniary loss
(b) Changes in the external value of money—foreign money liabilities
3 Taxation
(1) The Gourley principle
(2) Is the Gourley principle satisfactory?
s.Two Damages for the Different Types of Loss
10 Pecuniary loss (except consequent on personal injury, death, or loss of reputation)
Preliminary Material
1 Breach of contract—basic pecuniary loss
(1) The content of the promise
(2) Difference in value or cost of cure
(3) The general formulae for assessing basic pecuniary loss
(4) Examples of the measures of basic pecuniary loss applied
(a) Breach by seller failing to deliver goods wanted for resale
(b) Breach by seller failing to deliver goods wanted for use
(c) Breach by seller delivering defective goods wanted for resale
(d) Breach by seller delivering defective goods wanted for use
(e) Breach by seller making late delivery of goods wanted for resale
(f) Breach by seller making late delivery of goods wanted for use
(g) Breach by buyer refusing to accept the goods
(h) Breach by builder refusing to carry out work or carrying it out defectively
(i) Breach by builder in carrying out work late
(j) Breach by owner refusing to allow work to proceed
(5) Contracts for the benefit of third parties
2 Breach of contract—additional pecuniary loss
3 Torts—damage to property, including destruction
(1) Damage to real property
(2) Damage to goods
(a) Destruction of goods
(b) Mere damage to goods
(i) Replacement or repair costs?
(ii) Additional loss, including loss of use?
(3) The betterment question
4 Torts—wrongful interference with goods or land, other than causing property damage
(1) Goods
(2) Land
5 Torts—pure economic loss
(1) Misrepresentation
(a) What is the aim of the damages?
(b) Expenses caused and gains forgone
(2) Wrongful infringement of intellectual property rights
(3) Wrongful interference with business or contract
(4) Acts or omissions under the tort of negligence
(a) Negligent interference with contract or business
(b) Negligent performance of services beneficial to the claimant
11 Personal injury losses
Preliminary Material
1 Claims by the injured person
(1) Non-pecuniary loss
(a) Pain, suffering, and loss of amenity
(b) Should there be a threshold for the recovery of damages for non-pecuniary loss?
(2) Pecuniary loss
(a) The different types of recoverable pecuniary loss
(b) Calculating damages for pecuniary loss
(3) Compensating advantages provided by third parties in response to the personal injury (‘collateral’ benefits)
(4) Addendum—damages for wrongful birth
2 Claims by the deceased’s estate
12 Losses on death
Preliminary Material
1 Dependants
2 Actionability by injured person
3 The three heads of recoverable loss
(1) The first head—pecuniary loss attributable to the non-business relationship between deceased and dependant
(a) Pecuniary loss
(b) Business pecuniary loss
(c) Proof of loss
(d) Multiplier method
(2) The second head—damages for bereavement
(3) The third head—funeral expenses
4 Fatal Accidents Act 1976, section 4
5 The relationship between actions under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 where the wrong has caused death
13 Loss of reputation
Preliminary Material
1 When are damages awarded for loss of reputation?
(1) Breach of contract
(2) Torts
2 Assessing damages for loss of reputation
14 Mental distress or physical inconvenience (except consequent on personal injury or death)
Preliminary Material
1 When are damages awarded for mental distress or physical inconvenience?
(1) Breach of contract
(2) Torts
2 Assessing damages for mental distress or physical inconvenience
s.Three Miscellaneous Issues Relevant to Compensatory Damages
15 Interest as damages and interest on damages
Preliminary Material
1 Introduction
2 Interest as damages
(1) The old rule of no damages for a failure to pay
(2) What did Sempra Metals decide?
3 Interest on damages: statutory interest under section 35A Senior Courts Act 1981
(1) Section 35A Senior Courts Act 1981
(2) The compensatory purpose of statutory interest
(3) Simple interest only
(4) Is statutory interest always awarded?
(5) For what period is statutory interest payable?
(6) What is the rate of statutory interest?
(7) What is the relationship between the date of assessment of damages and statutory interest?
(a) Liabilities other than foreign currency liabilities
(b) Foreign currency liabilities
16 Limitation periods
Preliminary Material
1 Introduction
2 The normal time limits
3 The main exceptions to the normal time limits
(1) Damages for personal injury and death
(a) Basic time limits for personal injury—s 11
(b) Basic time limits for death—s 12
(c) The discretion to disapply the basic time limits for personal injury and death—s 33
(2) Damages for latent damage (other than personal injury) in the tort of negligence
(3) Equitable damages
17 Equitable (compensatory) damages
Preliminary Material
1 When may equitable damages be awarded?
2 When are equitable damages more advantageous than common law damages?
3 Non-compensatory equitable damages?
18 Negotiating damages
Preliminary Material
1 Introduction
2 Morris-Garner v One Step (Support) Ltd
3 The purpose of negotiating damages
4 The availability of negotiating damages
Part Three Restitution and punishment
19 Restitutionary remedies (for torts and breach of contract)
Preliminary Material
1 Introduction
(1) Restitution for wrongs
(2) Alternative analysis
(3) The terminology of disgorgement in preference to restitution?
(4) Edelman’s thesis
2 Restitution for torts
(1) Introduction
(2) Why should a claimant want a restitutionary remedy for a tort, rather than compensatory damages?
(3) When are restitutionary remedies available for torts?
(a) Money had and received
(b) Account of profits
(i) Innocent wrongdoing
(ii) Account of which profits?
(iii) Difficulty of an account of profits
(iv) Account of profits and damages
(c) The relationship with punitive damages
(d) Some significant anti-restitution cases?
(i) Phillips v Homfray
(ii) Stoke-on-Trent City Council v W & J Wass Ltd
(iii) Halifax Building Society v Thomas
(iv) Forsyth-Grant v Allen
(v) Devenish Nutrition Ltd v Sanofi-Aventis SA
(e) Conclusion
3 Restitution for breach of contract
(1) Restitution for breach of contract and unjust enrichment
(2) The law, and analysis, prior to Blake
(3) Attorney-General v Blake and its aftermath
20 Punitive damages
Preliminary Material
1 Are punitive damages awarded for breach of contract?
2 When are punitive damages awarded for torts?
(1) The three categories
(a) ‘Oppressive, arbitrary or unconstitutional action by the servants of the government’
(b) ‘The defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff’
(c) Express authorisation by statute
(2) The demise of the ‘cause of action’ test
(3) Other factors to be considered in deciding whether to award punitive damages
(a) Compensatory damages adequate
(b) Criminal punishment
(c) The claimant’s conduct
3 The quantum of punitive damages
4 Should the law on punitive damages be reformed?
(1) Arguments for the abolition of punitive damages
(2) Arguments for extending punitive damages on a principled basis
(3) The Law Commission’s recommendations
Part Four Compelling performance or preventing (or compelling the undoing of) a wrong
21 The award of an agreed sum
Preliminary Material
1 General points
2 Award of an agreed price
3 Award of an agreed sum payable on breach—liquidated damages
(1) The distinction between liquidated damages and penalties
(2) The new law
(3) What is a legitimate interest?
(4) Three controversial issues
(a) Actual or legally recoverable loss
(b) Liquidated damages used to limit damages
(c) Loss greater than penalty
(5) Relief against forfeiture
(6) Should penalties, like liquidated damages, be valid?
4 Award of an agreed sum (other than an agreed price) payable on an event other than breach
22 Specific performance
Preliminary Material
1 Introduction
2 The bars to specific performance
(1) The primary restriction—adequacy of damages
(a) Availability of substitute—uniqueness
(i) Breach of a contract to sell land
(ii) Breach of a contract to sell goods
(iii) Breach of a contract to sell shares or stocks
(b) Difficulty in assessing damages
(c) Inability to pay the damages
(d) Contractual obligation to pay money
(e) Contracts that can be immediately terminated
(f) Nominal damages and privity
(g) Beswick v Beswick—the radical interpretation
(h) A consumer’s remedies under Part 1 of the Consumer Rights Act 2015
(i) Is it satisfactory to maintain an adequacy of damages hurdle?
(2) The constant supervision objection
(3) Contracts for personal service
(a) Private law
(b) Public law
(c) Unfair dismissal legislation
(d) Conclusion
(4) Want of mutuality
(5) Uncertainty
(6) Contracts not supported by valuable consideration
(7) Contract unfairly obtained
(8) Impossibility
(9) Severe hardship
(10) The claimant’s conduct
(a) Serious breach
(b) One who comes to equity must come with clean hands
(c) One who seeks equity must do equity
(d) Laches
(e) Acquiescence
(f) Valid termination of the contract by the claimant
(11) No partial specific performance?
(12) Conclusion—the trend towards specific performance
3 Other issues
(1) Stipulated remedy
(2) The flexibility of specific performance—additional damages or compensation and conditional enforcement
(a) Damages in addition to specific performance
(b) Specific performance with compensation or abatement of purchase price
(c) Conditional specific performance
(3) The effect of specific performance on termination and damages
23 Injunctions
Preliminary Material
1 Introduction
(1) Prohibitory and mandatory injunctions
(2) Quia timet injunctions and injunctions where a wrong has already been committed
(3) Final and interim injunctions
2 Final prohibitory injunctions
(1) Torts
(a) Prohibitory injunction as primary remedy
(b) The traditional approach to the tort of private nuisance (and trespass to land)
(c) The new approach in Coventry v Lawrence
(d) Is the present law satisfactory?
(i) Arguments for greater use of damages
(ii) Arguments against greater use of damages
(iii) Conclusion
(2) Breach of contract
(a) Prohibitory injunction as primary remedy
(b) Indirect specific performance
(i) Contracts for personal service
(ii) Contracts for the sale of goods
(c) Stipulated remedy
3 Final mandatory injunctions
(1) Torts
(2) Breach of contract
4 Final quia timet injunctions
(1) Torts
(2) Breach of contract
5 Interim injunctions
(1) The law prior to American Cyanamid
(2) American Cyanamid v Ethicon
(3) Criticisms of American Cyanamid
(4) Exceptions to American Cyanamid
(a) Where no action for a final injunction will reach trial
(b) Trade dispute defence
(c) The need to protect free speech
(d) Little factual or legal dispute
(5) An alternative approach
(6) Special types of interim injunction
(a) Interim mandatory injunction
(b) ‘Without notice’ injunction
(c) Freezing injunction
(d) Search order
6 The claimant’s conduct as a bar to an injunction
(1) Serious breach of contract
(2) One who comes to equity must come with clean hands
(3) One who seeks equity must do equity
(4) Acquiescence
(5) Laches
(a) Final injunction
(b) Interim injunction
(6) Valid termination of the contract by the claimant
7 Appointment of a receiver
24 Delivery up
Preliminary Material
1 Delivery up of goods
(1) Introduction
(2) When will the courts order delivery up?
(3) Interim delivery up
(a) Torts (Interference with Goods) Act 1977, s 4
(b) Replevin
(4) The action for the recovery of land—a contrast to delivery up of goods
2 Delivery up for destruction or destruction on oath
Part Five Declaring rights
25 Nominal and contemptuous damages and declarations
Preliminary Material
1 Nominal damages
2 Contemptuous damages
3 Declarations
Part Six Remedies for equitable wrongs
26 Remedies for equitable wrongs
Preliminary Material
1 Introduction
2 Compensation for equitable wrongs
(1) Equitable compensation
(a) Compensation for loss
(b) No separate non-compensatory ‘account’ remedy
(2) Equitable (compensatory) damages
(a) The jurisdiction to award damages for breach of confidence
(b) The assessment of compensatory damages for breach of confidence
3 Restitution and punishment for equitable wrongs
(1) Restitution for equitable wrongs
(a) Restitution for breach of fiduciary duty
(i) Secret or unauthorised profit
(ii) Bribes or secret commissions
(b) Restitution for breach of confidence
(c) Restitution for dishonest assistance
(2) Punishment for equitable wrongs
4 Compelling performance or preventing (or compelling the undoing of) an equitable wrong
(1) Injunctions
(2) Accounting (for loss)?
(3) Delivery up in relation to breach of confidence
(a) Delivery up of material containing confidential information
(b) Delivery up for destruction or destruction on oath
5 Declaring rights
6 Miscellaneous issues on remedies for equitable wrongs
(1) Interest
(2) Limitation periods
7 Conclusion
Further Material
Index
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Part Two Compensation, s.One General Principles in Assessing Compensatory Damages, 6 Contractual reliance damages
Andrew Burrows
From:
Remedies for Torts, Breach of Contract, and Equitable Wrongs (4th Edition)
Andrew Burrows QC FBA
Content type:
Book content
Product:
International Commercial Law [ICML]
Published in print:
05 June 2019
ISBN:
9780198705932
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35.172.164.32