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Remedies for Torts, Breach of Contract, and Equitable Wrongs, 4th Edition by Burrows QC FBA, Andrew

Index

From: Remedies for Torts, Breach of Contract, and Equitable Wrongs (4th Edition)

Andrew Burrows QC FBA

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From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 17 September 2019

(p. 547) Index

For the benefit of digital users, indexed terms that span two pages (e.g., 52–53) may, on occasion, appear on only one of those pages.

abatement of purchase price 437–38
accelerated payments clause 389
accident insurance policy 158, 159
account of profits
account of which profits? 343–44
agreed sum, award of 392
combining remedies 14
confidence, breach of 521, 524, 532–33, 534–35
and damages 345–46
difficulty of 344–45
dishonest assistance 535–36
final prohibitory injunctions 453
innocent wrongdoing 342–43
interest 542–43
legal and equitable remedies 11
negotiating damages 326–27, 329–31
punishment for equitable wrongs 537
punitive damages 361
restitution 336, 348, 350, 351–52, 356–59, 526
secret or unauthorised profit 526, 528, 529
Achilleas, qualification of traditional contract test required by 98–105
Achilleas, The 100–2
assumption of responsibility 102–5
rejection of test of acceptance of liability as term of contract 98–100
acquiescence 434, 487–88, 489, 491, 496
actio personalis rule 339, 340, 347–48
action in debt 381
actionability by injured person 257–58
actionable wrong 377–78
adaptation costs 220
additional sufficient events 52–55
adequacy of damages 436
delivery up and breach of confidence 541
delivery up of goods 493–94, 495
indirect specific performance 460
interim injunctions 471–72 see also under specific performance
aggravated damages
confidence, breach of 522, 525
express authorisation by statute 367–68, 369
mental distress or physical inconvenience 284–85, 287–88, 289–91
punitive damages 361–62, 373, 376
agreed damages clause 396
agreed sum, award of 4, 5, 9, 11, 48–49, 381–400
accelerated payments clause 389
action in debt 381
actual loss 389, 393, 394
agreed price, award of 383–87
conditional sale agreements 389, 398, 400
depreciation compensation 389
general points 382–83
genuine pre-estimate of loss test 388, 389, 393–94, 396, 398
interim payment pre-trial 382
legally recoverable loss 393
legitimate interest 390–91, 392, 393–94, 395
liquidated damages 381, 388–97
new law 390–91
and penalties, distinction between 388–89, 398–400
used to limit damages 393–94
loss greater than penalty 394
minimum payment clause 389
payable on event other than breach 397–400
penalties 394–95, 398, 400
penalties, validity 395–97
pre-estimate of claimant’s loss 398–99
price 381
relief against forfeiture 394–95
repudiation of contract 383, 384–85, 386
underliquidated damages clause 393–94
unliquidated damages 388, 394
Albazero exception 202, 203, 204
all-or-nothing approach 59–60, 80, 116
amends, offer of 273
amenity, loss of 36, 37
mental distress or physical inconvenience 276, 278, 291–92
pecuniary loss 198
wrongful interference with land 221–22 see also pain, suffering and loss of amenity
American Cyanamid 469–74, 491, 539
criticisms 474–75
exceptions to 475–81
free speech, need to protect 479–80
little factual or legal dispute 480–81
trade dispute defence 477–79
where no action for final injunction will reach trial 475–77
annoyance 277, 283–84, 291
annuity 166
anonymity 441
anti-restitution clauses 347–52
anticipatory breach 468–69, 520
Anton Piller orders see search orders
anxiety 28, 281
arbitration 174
arbitration clauses 202
arrest
unconstitutional 363–64
artistic freedom, right of 423
assault and battery 28, 163
mental distress or physical inconvenience 287–88, 290
punitive damages 362–64, 367, 368–69, 372
assignment 203–4
assumption of responsibility
exclusionary effect 102–3, 104
inclusionary effect 102–3, 104
negligence 231, 233
remoteness 100, 102–5, 106
SAAMCO principle 119–20
attachment of earnings order 5
Australia 510, 537
(p. 548) average earnings index for future care costs 166–67
balance of convenience 469–73, 474, 475, 477–79
claimant’s conduct as bar to injunction 491
interim delivery up 496
interim mandatory injunctions 482–83
balance of justice 473
balance of probabilities 28, 80
factual causation 55, 56
proof of loss and loss of a chance 58–60, 67–68, 72–73
bargain promises 40, 41
bargaining
opportunity, loss of 324
post-judgment 463
pre-judgment 463
benevolence 159–60, 208, 213–14
benefits
incidental 155
non-recoupable, loss of 157 see also social security benefits
bereavement damages 37, 251, 252–53, 263–64
compensatory damages, date for assessment of 171–72
losses on death 256, 263–64, 267
mental distress or physical inconvenience 276, 291
Beswick v Beswick—radical interpretation 410–11
betterment 217–18
binding promise, breach of 8
blameworthiness 85, 116, 134, 143, 373
blanket immunities 22
bodily integrity 29, 46
bonuses, lost 72
brain damage 237
breach by builder in carrying out work late 200
breach by builder refusing to carry out work or carrying it out defectively 197–200
breach by buyer refusing to accept goods 195–96
breach by owner refusing to allow work to proceed 200
breach by seller delivering defective goods wanted for use 194
breach by seller failing to deliver goods wanted for resale 191–92
breach by seller failing to deliver goods wanted for use 192–93
breach by seller making late delivery of goods wanted for resale 194–95
breach by seller making late delivery for goods wanted for use 195
breach of contract
compensatory damages 39–42
contributory negligence 138–44
final mandatory injunctions 465–66
final prohibitory injunctions 454–62
final quia timet injunctions 468–69
loss of reputation 268–71
mental distress or physical inconvenience 277–83
punitive damages 360–61
remoteness 91–106
restitutionary remedies 352–59
to sell goods 403–7
to sell land 403
bribes or secret commissions 529–32, 535–36
business or contract, wrongful interference with 230–31
business, loss of 230, 269, 323
‘but for’ test 51, 52–53, 54, 55–56
compensating advantages 147, 151
contributory negligence 133
dishonest assistance 535–36
intervening cause 108–9
losses on death 265
Canada 537
equitable compensation 512
free speech 479
punitive damages 377–78
reliance damages 78
remedies 510
taxation 183–84
cancellation clause 174
care, cost of 156–57
care, duty of 45, 65
contributory negligence 138, 139, 141–42
equitable compensation 514
intervening cause 108–9, 110, 113
mental distress or physical inconvenience 279–80, 281
mitigate, duty to 131–32
negligence 231, 232–33
personal injury 249–50
SAAMCO principle 121–22, 126
causation
compensating advantages 147, 150, 153
contributory negligence 142–43
damages valuing right infringed 47
equitable compensation 513, 514
Human Rights Act 1998 26
impecuniosity 144
intervening cause 105–10, 111–16
non-compensatory cost of cure 50
proof of loss and loss of a chance 62
punitive damages 371
restitution 344
SAAMCO principle 117–18, 119–20
secret or unauthorised profit 529
cause of action test 174
abolition of 361, 362–63, 368–70, 374, 377
certainty, standard of 72–73
certificate of recoverable benefits 157
chance, loss of 57, 269 see also proof of loss and loss of a chance
changes in value of property or services in internal value of money (inflation) 171–76
non-pecuniary loss 171–72, 181
charging order 5
charitable payments 160–61
child (healthy but unwanted), cost of bringing up 250, 252
children 136, 247, 248, 249
infancy 166
minors 441
civil recourse theory 18–20
(p. 549) Coase theorem 16–17, 413–14
coercive remedies 5
collateral 153
benefits (compensating advantages provided by third parties) 249
warranty 202
commercial cases 302, 303, 305, 306, 475, 485–86
common sense or instinct 107
Commonwealth countries 22–23, 375
compelling performance or preventing equitable wrong 10, 538–41
accounting for loss 540
delivery up for destruction or destruction on oath 541
delivery up of material containing confidential information 541
injunctions 538–40
compensating advantages 147–62
collateral 153
direct 149
indirect advantages are not deducted 148–52
objective measure 152
provision of by third parties 249
provision of by third parties not deducted 148, 152–62
general factors influencing courts 152–55
non-state payments 158–62
social security benefits 156–57
res inter alios acta 153
social security benefits 153–54
subjective measure 152
compensation 9, 10, 11–12
depreciation 389
equitable 12
full 14–15, 161, 175
Human Rights Act 1998 25, 26, 27
compensation for equitable wrongs 511–25
confidence, breach of 532–35
damages assessment 523–25
jurisdiction to award damages 520–22
dishonest assistance 535–36
fiduciary duty, breach of 526–32
no separate non-compensatory ‘account’ remedy 515–20
restitution for equitable wrongs 525–36 see also equitable compensation
‘compensation neurosis’ 164
Compensation Recovery Unit 153–54, 157
compensatory damages 14, 35–50, 83–146, 164–69
compensatory aims 38–39
consequential 46, 47–48
contributory negligence 84, 85
damages awarded unconditionally 168–69
damages valuing right infringed 46–48
express authorisation by statute 367–68
Human Rights Act 1998 23–24
impecuniosity, demise of as a limitation 144–46
intervening cause 83, 84, 85
limitation periods 309
limiting 10–11
mitigate, duty to 84–85
negotiating damages 322, 329
non-compensatory cost of cure 48–50
once-and-for-all assessment 163–68
arguments for and against 163–64
general rule 163
interim payments 167–68
provisional damages 165
structured settlements 165–67
pecuniary loss, future 164, 166–67
periodical payments, reviewable 166
and punitive damages 370
remoteness 83, 84, 86–106
SAAMCO principle 83–84
theoretical underpinnings 39–46
breach of contract 39–42
torts 42–46
compensatory damages, date for assessment of 169–81
cause of action 174
date of loss rule 176
pecuniary loss 169
time after which court assessing damages is barred from taking into account events that have already occurred 169–70
value of money, property or services for damages assessment 170–81
changes in external value of money—foreign money liabilities 177–81
changes in value of property or services in internal value of money (inflation) 171–76
date of accrual of cause of action 170, 176, 177, 179
date of accrual of loss 170, 176, 177, 179
non-pecuniary loss 171–72, 181
pecuniary loss 172–76, 181
pecuniary loss, future 171, 172
pecuniary loss, past recurring 172
sterling-breach-date rule 177, 179–80, 181
compound interest 295, 297, 298–300, 303–4, 542–43
concurrent events 53
concurrent liability 8
between negligence and breach of contract 6–8
contributory negligence 141–42, 144
limitation periods 311
mental distress or physical inconvenience 286–87
remoteness 86, 105–6
stricter test for 91
concurrent sufficient events 53
conditional fee agreement 236
conditional sale agreements 389, 398, 400
conduct 113–17, 371
contributory negligence 116–17
declarations 505
delivery up of goods 496
equitable damages 316
final prohibitory injunctions 444
has been calculated to make a profit 361–62, 364–67
hypothetical 67–68
hypothetical, minimum obligation principle 68–73
(p. 550)
inequitable 445
intentional or reckless 222
merely unreasonable 385
non-wrongful conduct 111, 112
punishment for equitable wrongs 537
punitive damages 376
reasonable 113–14, 115–16
showing deliberate and outrageous disregard of claimant’s rights 377
unreasonable 84–85, 108, 114–15, 142, 385
wrongful 29 see also conduct of claimant as bar to injunction; third party conduct; and under specific performance
conduct of claimant as bar to injunction 456, 486–91
acquiescence 487–88
laches 489–91
final injunctions 489–90
interim injunctions 490–91
one who comes to equity must come with clean hands 487
one who seeks equity must do equity 487
serious breach of contract 486
termination of contract, valid by claimant 491
confidence, breach of 12–13
assessment of damages for 523–25
claimant’s conduct as bar to injunction 487, 490–91
equitable compensation 512
equitable damages 520
free speech 480
Human Rights Act 1998 22
injunctions 539
interim injunctions 475, 539–40
jurisdiction to award damages for 520–22
limitation periods 544
negotiating damages 321–22, 329–30
prohibitory injunctions 538–39
punishment for equitable wrongs 537
remedies 509–10, 511
restitution 341–42, 343–44, 525, 531, 532–35
confidence, loss of 423
confidential information 541
confidentiality 12–13, 480
confidentiality clause, breach of 323, 324
confiscation orders 371
congenital abnormalities 249–50
consequential damages 493
compensatory 46, 47–48
restitutionary 46
consequential loss 103, 175–76, 211, 212–13, 214, 224
consequential relief 504
consideration
failed 155
inadequacy of 430
conspiracy 223–24, 230, 367
constant supervision objection 415–19
final mandatory injunctions 464–65
final prohibitory injunctions 455–56
indirect specific performance 460
specific performance 415–19, 428–29, 436
constitutional rights, infringement of 363–64
constructive knowledge 311, 313–14
constructive trust 438–39, 528, 529, 530, 531–32, 543
confidence, breach of 533, 534
consumer credit agreements 213–15
consumer surplus 16–18, 283
contempt of court 5, 413, 440–41
contingencies of life 244, 262
contingency fund 166
continuity principle between right and remedy 19
contract price 191–92, 193, 195–96, 200
and market price, difference between 173, 174
contract as promise theory 40
contract unfairly obtained 430
contractual obligations, positive 11
contractual promise, negative, breach of 495
contractual warranty, breach of 39, 202, 227–28
contributory negligence 9, 132–44
agreed sum, award of 393
breach of contract 138–44
category one case 139, 141, 143, 144
category three case 139, 141, 142, 143
category two case 139, 141–42, 143–44
claimant’s conduct 116–17
compensatory damages 167–68
equitable compensation 512–13
factual causation 57
losses on death 257–58
punitive damages 371
SAAMCO principle 124
torts 133–38
applicability 136–38
damages reduction, extent of 134–36
what defendant must establish 133–34
wrongful interference with goods 219
conversion 46–47
compensatory damages, date for assessment of 172, 176, 177–78, 179
contributory negligence 138
delivery up of goods 493
mitigate, duty to 128–29
multiple 55
property damage including destruction 206
remoteness 90
restitution 340
taxation 182
wrongful interference with goods 219–21
corporation tax 298
corrective justice 18–20, 43–44, 45, 337
Cory v Thames Ironworks Co principle 97
cost of cure 205–6, 219, 220
basic pecuniary loss 189–90, 191, 193, 194, 197–200, 201, 203
damage to property including destruction 206, 207–8, 209, 211
interest 302
non-compensatory cost of 48–50
pecuniary loss 206
restitution 353–54
cost-benefit analysis 453
counter-factual 328
counterclaim 167–68
court orders 4, 5
court pronouncement 4
Court of Protection 247
credit, damage to 93
Criminal Injuries Compensation Scheme 266
criminal punishment 371
(p. 551) custom, loss of 74, 221
cynical profit-making category 367–68
cynical wrongdoing test 355, 532
damage
latent 8, 310, 313–14
mere 209
type of 94–97
damages 4, 5, 9
and account of profits 345–46
actionable 23–24
additional 367–68, 437
assessment, difficulty in 407–8
assessment for Human Rights Act 1998 cause of action 26–29
basic 287–88, 289
calculation of 243–49
compensatory 7–8, 9
contemptuous 35, 503–4
exemplary 366, 376, 537 see also punitive damages
expectation 355, 358
general 93, 235, 296–97, 307
Human Rights Act 1998 26, 27
inability to pay 408–9
incidental 205–6
non-compensatory 46
non-compensatory equitable 319–20
non-recoverable 277
ordinary 331, 354
proportionate 66–67
provisional 165, 167, 254, 258
quantum of 168
recoverable 277
restitutionary 46, 221, 322
special 93, 179–80, 235, 296–97
and specific performance 439
stigma 270
substantial 202, 203–4, 321
in substitution 317
substitutive 46, 48–49
threshold for recovery of 238
unliquidated 388, 394
date of accrual of cause of action 170, 176, 177, 179
date of accrual of loss 170, 176, 177, 179
date of breach or date of tort rule 47
date of knowledge 311–12
date of loss rule 176
death
compensatory damages 164, 165–68, 169
contributory negligence 133, 137
exceptions to normal time limits 312–13
interest 301, 302, 304–5, 306, 307
intervening cause 111, 112
losses on 37
proof of loss and loss of a chance 61, 63, 65–66
pure economic loss 222
remoteness 88–89
torts 44–45
wrong has caused 267
deceased’s estate, claims by 253–55
deceit 6, 39
compensatory damages, date for assessment of 175
contributory negligence 136–37, 138, 139
equitable compensation 514
mental distress or physical inconvenience 283–84
misrepresentation 223, 224, 225–26, 227–28
punishment for equitable wrongs 536–37
pure economic loss 222
remoteness 86, 90
restitution 336, 338–39, 349
SAAMCO principle 122–23
declarations 4, 26, 504–6
declaring rights 9, 541
defamation 37
free speech 479, 480
injunctions 539
mental distress or physical inconvenience 288–89
proof of loss and loss of chance 73
punitive damages 365, 368–69, 372
reputation, loss of 271, 272, 274
defective delivery 195–96
delay 202, 203, 433–34, 491
delivery up
confidence, breach of 534
for destruction or destruction on oath 497–99, 541
of goods 493–97, 498–99
commercially unique 405
courts ordering 493–96
interim 494, 496–97
recovery of land 497
replevin 497
Torts (Interference with Goods) Act 1977 496
of material containing confidential information 541
for wrongful detention 404
dependants and losses on death 256–57
dependency 88–89
depreciation compensation 389
depression 276
design rights 342–43, 367–68, 497–98, 499
destruction or destruction on oath and delivery up 497–99
deterrence 377–78
difference in value measures 189–90, 195, 213, 232, 353–54
diminution in value of capital 207
diminution in value of land 221–22, 321, 331
diminution in value of property 206–8, 209
direct effect 15, 369–70
directness principle 148
disability
child’s upkeep costs 249–52
compensatory damages, form of 166
disabled mother/healthy child and attributable costs 251
payments (non-state) 159–60
disappointment 277, 283–84
disclosure, specific 5, 486
(p. 552) discomfort 283–84, 291
discount
average 136
post-appeal 136
rate, negative 242, 245
discretionary bonuses 71
discretionary defences 10–11
discretionary remedy 402
disgorgement 337–38, 356, 525
terminology in preference to restitution 336–37 see also restitution
dishonest assistance 344, 509–10, 535–36, 544
dishonesty 137, 270, 342, 488
dismissal
necessitated by personal injury 148 see also unfair dismissal; wrongful dismissal
distress 36–37, 237, 497
emotional 376 see also mental distress
distributive justice 44–45, 250
divorce
between claimant widow and deceased 262–63
resulting from claimant’s injury 243
double recovery 14–15, 48–49, 214–15, 346
duress 335, 338–39, 430
duties, negative and positive 38–39
duty, breach of
confidence, breach of 522
contributory negligence 141
final mandatory injunctions 465
intervening cause 107–8, 111, 112, 115
limitation periods 311
duty of care deed 202
earnings, loss of 36, 69, 230–31, 269
interest 297–98
mitigate, duty to 128
non-state payments 158, 160
personal injury 170, 172, 182, 238, 241–43, 249–50, 253, 254
pre-death 267
pre-trial 306
remoteness 88–89
reputation, loss of 268, 270–71
social security benefits 156–57 see also future earnings, loss of
economic analysis 16–18
economic efficiency 42–43, 453
economic rights 331
economic support, loss of 247
Edelman’s thesis 337–38
effectiveness principle 16
efficient breach theory 355–56, 396–97, 413, 414
employment, loss of 272 see also dismissal; personal injury
employment and support allowance 156–57
employment tribunals 425
enforcement procedures 4, 5
equitable compensation 12, 83, 435, 509–10, 511–20
accounting for loss 540
compensation for loss 514
equitable damages 520, 522
equitable wrongs 526
injunctions 538
interest 542–43
limitation periods 543
no separate non-compensating account remedy 515–20
punishment for equitable wrongs 536
equitable damages 315–20
in addition to specific performance 437–38
compensatory 35–36
exceptions to normal time limits 314
final prohibitory injunctions 444, 449, 454
injunctions 315–17
negotiating damages 328, 329
non-compensatory 319–20
power to award 315–16
specific performance 315–17
in substitution 526
when more advantageous than common law damages 317–19
wrongful interference with land 221–22
equity will not assist a volunteer 429
equivalence principle 16, 369–70
European Contract Code 143
European Union law, breach of 15–16
eurotorts 369–70
eviction 365, 366, 375
evidence collection, orders made to assist claimant with to establish case 5
evidence, fresh 169–70
exemplary damages 366, 376, 537 see also punitive damages
expectation interest 14–15, 39–40, 41, 42
adequacy of damages 413–14
final prohibitory injunctions 455–56
pecuniary loss 189–90
and reliance damages 75, 76–77, 78–80, 81
restitution 525–26
SAAMCO principle 121–22
expectation of life, loss of 171, 237, 251
expectation measure 331
expectation principle 201
expenditure/expenses
post-contractual 81
pre-trial 36
reasonable recoverable 130
wasted 79
external value of money, changes in—foreign money liabilities 177–81
facilitative institution analysis 535
factual causation 6, 51–57
additional sufficient events 52–55
‘but for’ test 51, 52–53, 54, 55–56
material increase of risk 55–57
fair comment (free speech) 479
fair trial 26–27, 310, 313
false imprisonment
compensatory damages 37
damages valuing right infringed 46
Human Rights Act 1998 28
(p. 553)
mental distress or physical inconvenience 283–84, 287–89, 290
punitive damages 362–63, 364, 367, 368–69, 372
reputation, loss of 272, 274–75
false representations 223, 224
Fatal Accidents Act 1976 265–67
fiduciary duty, breach of
and confidence, breach of 534
dishonestly procuring or assisting 525, 526
equitable compensation 511–12, 513–14, 520
equitable wrongs 12
interest 303, 542
interim injunctions 476
limitation periods 543–44
prohibitory injunctions 538
punishment for equitable wrongs 537
remedies 509–10, 511
restitution 337, 355, 356–58, 525, 526–32
restitution
bribes or secret commissions 529–32
secret or unauthorised profits 526–29
fieri facias writ 5
final mandatory injunctions 462–66, 540
breach of contract 465–66
torts 462–65
final prohibitory injunctions 443–62, 471, 538–39, 540
breach of contract 454–62
primary remedy, injunction as 454–56
specific performance, indirect 456–61
stipulated remedy 462
interim injunctions 472–73
torts 443–54
Coventry v Lawrence 449–51
final remedy, injunction as 443–44
greater use of damages, arguments for 451–53
greater use of damages, arguments against 453–54
private nuisance (and trespass to land) 444–49
final quia timet injunctions 467–69
breach of contract 468–69
torts 467–68
financial advantage, loss of 189–90, 206
financial dependence and losses on death 257
flooding, loss by 102–3
forbearance 141
foreign currency liabilities 177–81, 307–8
forfeiture 394–95, 417, 499
fraud
insurance 367
interest 300, 303, 542
intervening cause 109–10
limitation periods 543
punitive damages 372
reputation, loss of 274
whiplash claims, fraudulent 238 see also fraudulent misrepresentation
fraudulent inducement 90
fraudulent misrepresentation 223–26, 227–28
contributory negligence 137–38
restitution 349
free speech, need to protect 479–80
freedom of contract 399
freedom of expression 479–80, 539–40
freezing injunctions 484, 485–86
‘world-wide’ 485
frustration 28, 431–32
fund management charges 247
funeral expenses 252–53, 254–55, 264, 267
future earnings, loss of 66, 246, 247, 249
future pecuniary loss 171, 172
compensatory damages, form of 164, 166–67
interest 307
loss consequent on actional personal injury or death 65–66
personal injury losses 234–35, 242, 244, 246–47, 249
taxation 184
gain-based measures 336–37
genuine pre-estimate of loss test 388, 389, 393–94, 396, 398
good bargain 81
good faith, duty to act in 377–78
goods 209–17
destruction 209–11
interference with 541
loss of 220
mere damage 211–17
additional loss including loss of use 214–17
replacement or repair costs 211–14
property damage, including destruction 209–17
specific or ascertained 403–4
wrongful interference 219–21, 222 see also delivery up; trespass to goods
goodwill, loss of 269–70, 323, 330–31
Gourley principle 182–84
gratuitous carers/third parties 240–43
gratuitous nursing services 168–69
gratuitous payments 154, 159, 168–69
gratuitous services 265–67
grief and annoyance 272
group personal accident insurance policy 159–60
handicapped in the labour market (Smith v Manchester Corp damages) 239
happiness, loss of 36–37, 216–17, 237, 268, 276
harassment 90–91, 284–85, 365
hardship 10–11, 463–64
bar 466
severe 431–32
health insurance scheme (employer’s) 158, 160
hire-purchase agreements and hire charges 70, 213, 214–15, 398, 400
horizontal effect 22
housekeeping capacity, loss of 242–43
Human Rights Act 1998 22–29
damages assessment for HRA cause of action 26–29
non-tortious public wrong 23–26
separate channels approach 25–26
human rights infringements 318–19, 364, 369, 370
humiliation 287–88
‘if but only if’ test 370
ill-health gratuity 159–60
ill-treatment in custody 28 see also false imprisonment; malicious prosecution
(p. 554) impecuniosity 144–46, 175, 296
implied terms 71, 386–87
impossibility 430–31
imprisonment 5, 28, 371 see also false imprisonment
inaction, unreasonable 127–29
income, loss of see earnings, loss of
Index-Linked Government Stock (ILGS)
personal injury losses 242, 244, 245–47
interest 307
losses on death 260, 262
industrial disputes 475, 476
industrial injuries scheme 44–45
infancy and disability 166
inflation 171–72
compensatory damages, date for assessment of 176
future 172
and interest 306–7
personal injury 245, 246–47
information and advice 124–25
information, failure to provide 117
injunctions 4, 5, 9, 10, 14, 17–18, 35, 440–92
compelling performance or preventing equitable wrong 538–40
compensated 452–53, 454
delivery up of goods 496
equitable damages 315–17
Human Rights Act 1998 26
limitation periods 314, 544
ordinary 318
preventing dissemination of private information (celebrities) 441
prohibitory 355
restitution 357, 526
specific performance 422, 423, 424
substitution for 321–22, 323–24, 329–30
injured person, claims by 234–53
collateral benefits (compensating advantages provided by third parties) 249
non-pecuniary loss 235–38
pain, suffering and loss of amenity 235–37
threshold for recovery of damages 238
pecuniary loss 238–49
damages, calculation of 243–49
types of 238–43
wrongful birth, damages for 249–53
injurious falsehood 73, 230, 479
injury
intervening cause 107–8, 111–12, 114–15, 116
physical 95, 273
innocent wrongdoing 342–43
insurance
contract 158
fraud 367
property damage including destruction 208
integrity, right to 48
intellectual property rights 14, 228–30, 523, 524
delivery up and breach of confidence 541
delivery up for destruction 497–98, 499
pure economic loss 222
reputation, loss of 272
restitution 348, 356–57
search orders 485–86
wrongful infringement 228–30
wrongful interference with 329–30
intention 198–200
intention justification theory 414
intentional wrongdoing 111, 112
interest 295–308
actual interest losses 300
awards of 35–36
base rate 295–96
charges 131
charges, recoverability of 84
commercial cases 302, 303, 305, 306
compensatory damages, date for assessment of 176, 178
compound 295, 297, 300, 303–4, 542–43
conditional specific performance 438–39
as damages 296–301
no damages for failure to pay (old rule) 296–98
Sempra Metals decision 298–301
date of loss/date of cause of action 306
death 301, 302, 304–5, 306, 307
equitable 438–39
future pecuniary loss 307
inflation 306–7
LIBOR rate 299
loss of interest 298
non-pecuniary loss 302–3, 304–5, 306, 307
non-statutory 542–43
pecuniary loss 189, 302, 303, 304
performance 41–42, 189–90
personal injury 171, 234–35, 301, 302, 304–5, 306, 307
post-judgment 295
pre-judgment 295, 301, 542
pre-trial pecuniary loss 305, 306
private 446, 447, 449
property damage including destruction 216
rates 180, 242
relevant day 295–96
remedies for equitable wrongs 542–43
interest on damages 301–8
Senior Courts Act 1981 301
simple interest 303–4
statutory interest 304
compensatory purpose 302–3
period payable 304–5
rate 305–6
statutory interest and assessment date of damages 306–8
foreign currency liabilities 307–8
liabilities other than foreign currency liabilities 306–7
interference
by unlawful means 230, 366, 367, 368–69
with contract 231
with enjoyment of land 453
with goods 541
tortious 496
(p. 555) interim injunctions 440–41, 443, 469–86, 540
alternative approach 481
anonymised 480
claimant’s conduct as bar to 486
confidence, breach of 539–40
and freezing injunctions 485
laches 490–91
libel 539
mandatory 401–2, 469, 481–84, 496, 540
prohibitory 469, 471, 538–39, 540
receiver, appointment of 491–92
search orders 485–86
specific performance 405, 406, 408, 417, 420–21, 422
‘without notice’ injunctions 484–85 see also American Cyanamid
interim payments 167–68, 382
interim restraint order 539–40
interlocutory judgment 360–61
intervening cause 6, 107–17
claimant’s conduct 113–17
contributory negligence 116–17
reasonable acts 115–16
unreasonable acts 114–15
compensating advantages 148
equitable compensation 512–13
natural events 107–9
SAAMCO principle 119–21
specific performance 402
third party conduct 109–13
duty was to guard against such third party intervention 109–11
third party intervention other than where there was a duty to guard against it 111–13
intimidation 230–31, 361, 362–63, 367
investment advice costs 247
irrevocable election view 439
jobseeker’s allowance 156–57
joint defendants 373
judgment debt 301
judicial remedies 3–4, 9–10, 13
judicial review 20
‘just satisfaction’ 24, 364, 370
juries 274, 288–89, 372, 456
justification (free speech) 479
knowing receipt 509–10, 535, 544
laches 10–11, 489–91
conduct of claimant 433–34
declarations 505
delivery up of goods 496
final injunctions 489–90
interim injunctions 490–91
limitation periods 314, 544
land
diminution in value 221–22, 321, 331
interference with enjoyment of 453
recovery of 497
sale of 77, 81
use conflict 452–53
wrongful interference 221–22
wrongful use 324–25, 329–30 see also trespass to land
last-opportunity rule 116–17
lawful means conspiracy 272
legal compulsion 155
legal and equitable remedies 10–11
legitimate interest 390–91, 392, 393–94, 395
liability
acceptance 99
compensatory damages 84, 167–68
for consequences 51–52
disproportionate 102
double 203
foreign currency 177–81, 307–8
insurance 43
intervening cause 108–9
negligence 231
non-fault enterprise 43
other than foreign currency liabilities 306–7
promissory 8
proof of loss and loss of a chance 61
pure economic loss 222
state 15
statutory 225–26
libel 182
delivery up for destruction 499
injunctions 539
interim injunctions 539
intervening cause 110
punitive damages 364–65, 373–74, 376
reputation, loss of 268, 272
restitution 351–52
liberty, loss of 28, 29, 283–84, 288–89 see also imprisonment
LIBOR rate 299
licence fee damages 524
life assurance payments 265
life expectancy 244, 248
light, right to, infringement of 221–22, 350, 467, 482
limitation periods 8, 9, 36, 309–14
agreed sum, award of 382
constructive knowledge 311, 313–14
date of knowledge 311–12
declarations 505
deterioration of evidence over time 309
exceptions to normal time limits 311–14
death 312–13
equitable damages 314
latent damage 310, 313–14
personal injury 311–13
fifteen year long-stop bar 313–14
interest 298
normal time limits 310–11
remedies for equitable wrongs 543–44
six months 339, 340
six years 310–11, 313–14, 339, 490, 544
statutory 489–90
three years 311–12
twelve years 310, 497
liquidated damages 6
agreed sum, award of 381, 388–97
new law 390–91
and penalties, distinction between 388–89, 398–400
used to limit damages 393–94
pecuniary loss 202
stipulated remedy 436–37, 462
(p. 556) living expenses 248–49
loss
accounting for 12, 540
actual 119, 174, 389, 393, 394
compensation for 511–14
consequent on actionable personal injury or death 65–66
constructive total 209
contemplation of 83
degree of likelihood of 95
direct 119, 212–13, 214
disproportionate, compared to contractual consideration: United States approach 97–98
distribution 44
economic 106, 119–20
exceptional 98
financial 96
foreseeable 97
future 163–64, 453
future continuing 318
greater than penalty 394
indirect 119
legally recoverable 393
monetary 36
non-recoverable 102–3
non-remote 124
out-of-pocket 189–90
past 242
past continuing 318
post-trial 260, 261, 262
potential future 212–13
pre-trial 260, 261
present 163
property damage including destruction 206
proprietary 36, 237
recoverable 158
reliance 124, 203, 331
that would have been suffered even if claimant had complied with duty to mitigate 131–32
trading 93, 115
type of 94–97
wrongful 340
losses on death 256–67
actionability by injured person 257–58
benefits 265
bereavement damages 256, 263–64, 267
contingencies of life 262
date of death 260
death-after-retirement pension 261
death-in-service pension 261
dependants 256–57
discount rate 260, 262
divorce between claimant widow and deceased 262–63
earnings from starting work after death of relative 265
Fatal Accidents Act 1976 265–67
financial dependence 257
funeral expenses 264, 267
gratuitous services 265–67
Index Linked Government Stock (ILGS) 260, 262
life assurance payments 265
‘lost years’ earnings awards 267
mother’s or wife’s services 258–59
non-pecuniary loss 265, 267
Ogden Tables 260
pecuniary loss 258–63, 267
business 259
multiplier method 260–63
post-trial 260
pre-death 267
proof of loss 259–60
pensions 265
post-trial loss 260, 261, 262
pre-death loss of earnings 267
pre-death personal injury losses 267
pre-trial loss 260, 261
re-marriage of widow(er) 263, 265
social security benefits 265, 266–67
trial date 260–61
wrong has caused death 267
wrongful act, neglect or default 256, 257–58
‘lost years’ 234–49, 254, 267
lump sum payments 164, 166, 415
personal injury 235, 244, 249
wrongful infringement of intellectual property rights 229
lying and breaking one’s promise, difference between 223
malicious prosecution 37, 272, 274–75
mental distress or physical inconvenience 287–89
punitive damages 362–63, 368–69, 372
mandatory injunctions 442–43, 451, 538
claimant’s conduct as bar to 486
equitable compensation 515, 518
equitable damages 319
quia timet 467–68
receiver, appointment of 491
Mareva injunctions see freezing injunctions
market buying price 192, 219–20
market cost 206, 212
market deterrence theory 43
market fall losses 109
market, loss of 95
market price 191–92, 193, 194, 195, 196, 340
market selling price 219–20
basic pecuniary loss 193, 194–95, 196, 197
damage to property including destruction 206, 209–11, 212
market value 36, 199, 210
marriage prospects, loss of 247
material contribution 52
material gain 337
material increase of risk 55–57, 62–63
material non-disclosure 125–26
medical expenses 172
medical, nursing and hospital expenses 130, 239–41, 242–43, 253
mental benefits, expected, loss of 282–83
mental distress 7–8, 9, 35, 36–37
adequacy of damages 414–15
(p. 557)
compensatory damages, date for assessment of 171–72
confidence, breach of 522, 525
losses on death 263
negotiating damages 331
pecuniary loss 198
personal injury losses 251, 252
property damage including destruction 216–17
reputation, loss of 268, 271, 272
restrictions on recovery for 6 see also mental distress or physical inconvenience
mental distress or physical inconvenience 276–92
amenity, loss of 276, 278, 291–92
annoyance 277, 283–84, 291
anxiety 281
assessment of damages 288–92
award of damages 277–88
breach of contract 277–83
torts 283–88
disappointment 277, 283–84
discomfort 283–84, 291
distress 287–88
happiness, loss of 276
harassment 284–85
humiliation 287–88
inconvenience 283–84, 291
injury to feelings 284–85, 287–88, 289–90, 291
mental satisfaction 278–79
mental suffering 280
non-pecuniary loss 276, 283, 288–91
non-recoverable damages 277
peace of mind 278–79
pecuniary loss 277, 281
pleasure, loss of 278, 291–92
recoverable damages 277
reputation, loss of 276
temper, loss of 277
vexation 277, 280, 281
mental incapacity 441
mental satisfaction 278–79
mental suffering 280
mesne profits 221
‘mini-trial’ of dispute 470–71, 474, 482–83
minimum obligation principle 68–73
minimum payment clause 70, 389
minors and injunctions 441
misappropriation 206, 216, 219, 220
misrepresentation 7–8, 223–28
aim of damages 223–26
compensating advantages 150, 152
compensatory damages, date for assessment of 174–75
contract unfairly obtained 430
contributory negligence 137–38
expenses caused and gains forgone 226–28
inducing contracts 39
innocent 225–26, 338–39
mental distress or physical inconvenience 283–84
mitigate, duty to 131
negligent 39
non-fraudulent 338–39
pure economic loss 222
reliance damages 75, 76, 79–80
remoteness 90
restitution 336, 338–39
SAAMCO principle 117, 121–23 see also fraudulent misrepresentation
misstatement, negligent 225
mistake
common 431–32
compensating advantages 155
contract unfairly obtained 430
restitution 335, 338–39
unilateral 430
mitigate, duty to 127–32
adequacy of damages 413, 414–15
agreed sum, award of 383, 387, 393
anticipatory repudiation 132
basic pecuniary loss 189, 190, 191–92, 193, 194, 195, 196, 197, 198–99
compensating advantages 152
compensatory damages, date for assessment of 174–75, 176
contributory negligence 142
damages valuing right infringed 46–47
final mandatory injunctions 463
final prohibitory injunctions 455–56
impecuniosity 145, 146
interest 299
intervening cause 113
loss that would have been suffered even if claimant had complied with 131–32
pecuniary loss 205
proof of loss and loss of chance 66
property damage including destruction 209, 214
specific performance 402
unreasonable action 130–31
unreasonable inaction 127–29
wrongful interference with goods or land 219–20, 221
mitigation
in contract 46–47
of damages, compensating advantages 148
Human Rights Act 1998 26
of loss 169
non-compensatory cost of cure 50
personal injury 249–50 see also mitigate, duty to
mobility allowance 156–57
mobility, loss of 156–57
money had and received 336, 338, 340–41
moral rights 16
morality, individualistic 43
Morris-Garner v One Step (Support) Ltd 321, 322, 323–24
mother’s or wife’s services 258–59
multiple claimants 373–74
multiplier method 244, 245, 246, 247–48, 249, 260–63
mutual confidence, trust and respect 270, 419, 420–21, 422, 425
mutuality, affirmative 403
National Health Service (NHS) 166–67, 239–40
natural events, intervening 107–9
natural justice, breach of 423, 424–25
negative mutuality see want of mutuality
neglect 127
negligence 6, 8
acts or omissions under
negligent interference with contract or business 231–32
(p. 558)
pure economic loss 231–33
services beneficial to claimant, negligent performance of 232–33
causing injury 148
compensating advantages 147, 149–50
compensatory damages 84, 168, 175
contributory negligence 136
damages valuing right infringed 46
equitable compensation 513, 514, 519
factual causation 57
Human Rights Act 1998 24
intervening cause 107–8, 109, 110, 111–12, 113, 114–15
limitation periods 311
mental distress or physical inconvenience 277, 279–80, 281, 283–84, 286–88
misrepresentation 223, 225
mitigate, duty to 128–29
non-state payments 160–61
pecuniary loss 188, 202, 231–32
personal injury 234, 249
professional 12, 67–68, 510, 543
proof of loss and loss of a chance 61, 62
property damage including destruction 206, 207–10, 212–13, 217–18
pure economic loss 222
remoteness 86–88, 96, 105–6
reputation, loss of 272
restitution 342–43
SAAMCO principle 117, 118, 119–20, 122–23, 124, 125–26
torts 42–43, 45
wrongful interference with goods 219 see also contributory negligence
negotiating damages 35–36, 321–32
account of profits 326–27, 329–31
availability of 328–32
confidence, breach of 523–25, 532–33
damages valuing right infringed 48
equitable damages 316, 319, 328, 329
Morris-Garner v One Step (Support) Ltd 321, 322, 323–24
non-competition covenant, breach of 323, 327, 330–31
pecuniary loss 200
profits, loss of 323
property damage including destruction 216
purpose of 324–28
restitution 336, 337–38, 343–44, 348–49, 354
restrictive covenant, breach of 321, 324, 327, 329–30
substitution for an injunction 321–22, 323–24, 329–30
trespass to land 324–26, 327
wrongful interference with goods 220
wrongful interference with land 221–22
‘Wrotham Park’ damages 321, 323, 332
NESS test 51–52
New Zealand 510, 537
‘no better off’ principle 51–52
no claw-back rule 199
‘no fusion’ dogma 530
no legitimate interest 386–87
no partial specific performance 435–36
no separate non-compensatory ‘account’ remedy 515–20
no transaction approach 118
nominal damages 10–11, 35, 503
compensating advantages 148–49
compensatory damages, date for assessment of 174
damages valuing right infringed 48
declaring rights 541
final prohibitory injunctions 445–46
Human Rights Act 1998 23–24
intervening cause 110
pecuniary loss 196, 201, 202
and privity 410
restitution 354
wrongful interference with goods 220–21
non-competition covenant, breach of 323, 327, 330–31
non-competition provision 390
non-delivery 195–96
non-disclosure 338–39
non-fault enterprise liability 43
non-monetary remedies, bargaining around 16–18
non-pecuniary loss 35, 36–37, 216–17
claims by injured person 235–38
pain, suffering and loss of amenity 235–37
threshold for recovery of damages 238
compensating advantages 153–54
confidence, breach of 525
equitable compensation 512
final prohibitory injunctions 453
Human Rights Act 1998 26, 27, 28–29
interest 302–3, 304–5, 306, 307
loss of reputation 268, 270–71, 272–73, 274–75
losses on death 265, 267
mental distress or physical inconvenience 276, 283, 288–91
personal injury losses 234–35, 242–43, 247, 249–50, 251–53
proof of loss and loss of chance 74
social security benefits 157
value of money, property or services for damages assessment 171–72, 181
non-performance 427
non-profit-earning ship cases 216–17
non-solicitation covenants 323
non-state payments 158–62
nuisance 6
compensatory damages, date for assessment of 175
factual causation 53, 56
final prohibitory injunctions 443–44, 450, 451, 452–53, 454
final quia timet injunctions 467, 468
Human Rights Act 1998 24
intervening cause 113
limitation periods 311
mental distress or physical inconvenience 283–84, 291
private 444–50, 454
property damage including destruction 206, 207
punitive damages 361, 365, 366, 367, 368–69
remoteness 89
restitution 348–49, 350, 351
temporary, non-liability for 452
wrongful interference with land 221
nursing care costs 214–15
(p. 559) obligation 5–6
negative 42, 45
positive 9, 42, 45–46
office-holders (public employees) 423, 424–25
Ogden Tables 65–66, 244, 260
ombudsman 44–45
once-and-for-all assessment 235 see also under compensatory damages
‘one who comes to equity must come with clean hands’ 10–11, 432, 487
‘one who seeks equity must do equity’ 433, 487
opportunity, loss of 150–51, 272
oppressive, arbitrary or unconstitutional actions by servants of the government 361–64, 375
ordinary lending loss 119
ordinary profits, recoverability of 96, 124
out-of-court settlements 37, 165–66
output contracts 460, 461
overcompensation
agreed sum, award of 397
compensatory damages, date for assessment of 177, 180
pecuniary loss 190, 192, 203
personal injury 245–46
property damage including destruction 217–18
pain, suffering and loss of amenity 35, 36–37
claims by injured person 235–37
compensatory damages, date for assessment of 171, 181
damages valuing right infringed 46
interest 302
mental distress or physical inconvenience 276, 288–89
personal injury losses 249–50, 253
proof of loss and loss of chance 74
partial defence 132–33
passing off
interim injunctions 475–76
restitution 342, 343, 351–52
wrongful infringement of intellectual property rights 228
past fact and hypothetical or future events 59, 63
patents 342, 497–98
confidence, breach of 524–25
restitution 342–46
secret or unauthorised profit 529
wrongful infringement of intellectual property rights 229–30
peace of mind 216–17, 278–79
Pearson Commission 157, 238, 239–40, 265
pecuniary loss 35, 36, 37, 187–233
additional (breach of contract) 187, 205–6
Albazero exception 202, 203, 204
amenity, loss of 198
attributable to non-business relationship between deceased and dependant 258–63
business pecuniary loss 259
multiplier method 260–63
proof of loss 259–60
basic pecuniary loss (breach of contract) 187–204, 206
breach by builder in carrying out work late 200
breach by builder refusing to carry out work or carrying it out defectively 197–200
breach by buyer refusing to accept goods 195–96
breach by owner refusing to allow work to proceed 200
breach by seller delivering defective goods wanted for use 194
breach by seller failing to deliver goods wanted for resale 191–92
breach by seller failing to deliver goods wanted for use 192–93
breach by seller making late delivery of goods wanted for resale 194–95
breach by seller making late delivery for goods wanted for use 195
difference in value or cost of cure 189–90
general formulae for assessment 190–91
promise, content of 187–88
third parties, contracts for benefit of 201–4
business, loss of 230
claims by injured person 238–49
damages, calculation of 243–49
types of 238–43
compensatory damages, date for assessment of 169
confidence, breach of 525
consequential losses 211, 212–13, 214
constructive total loss 209
contract price 191–92, 193, 195–96, 200
cost of cure 219, 220
basic pecuniary loss 191, 193, 194, 197–200, 201, 203
damage to property including destruction 205–6, 207–8, 209, 211
delay 202, 203
difference in value measures 195, 213, 232
diminution in value 211, 212–13, 214, 219, 220
diminution in value of capital 207
diminution in value of property 206–8, 209
direct loss 212–13, 214
earnings, loss of 230–31
equitable compensation 512
goods, loss of 220
happiness, loss of 216–17
Human Rights Act 1998 26
intellectual property rights, wrongful infringement of 523
interest 189, 302, 303, 304
loss of reputation 268, 269–73
losses on death 258–63, 267
market buying price 192, 219–20
market cost 206
market price 191–92, 193, 194, 195, 196
market replacement cost 209–10, 212
market resale price 192–93
market selling price 219–20
basic pecuniary loss 193, 194–95, 196, 197
damage to property including destruction 206, 209–11, 212
market value 199, 210
mental distress or physical inconvenience 277, 281
mitigate, duty to
basic pecuniary loss 189, 190, 191–92, 193, 194, 195, 196, 197, 198–99
damage to property including destruction 206, 210, 212, 214, 215
past recurring 172
(p. 560)
personal injury losses 234, 249–50, 251–53
post-trial 260
pre-death 267
pre-trial 234–35, 243, 305, 306
profit, loss of 194, 196, 209, 210–11, 212, 227–29, 230, 231
property damage, including destruction 187, 206–18
betterment 217–18
goods 209–17
real property 206–9
punitive damages 360
reinstatement costs 206, 207, 208
remoteness 88–89
repair costs 202, 206, 207, 208, 209, 217–18
replacement costs 209, 210, 211, 217–18
resale price 191–92, 193, 219–20
substitute goods 192
use, loss of 202, 203, 207–8, 213, 215–16, 221
temporary 220, 221
user profit, loss of 192, 194, 195, 205, 215, 220, 221
value of money, property or services for damages assessment 172–76, 181
wrongful interference (other than causing property damage) 187, 219–22
goods 219–21
see also future pecuniary loss; pure economic loss
penalties
agreed sum, award of 394–95, 398, 400
and liquidated damages, distinction between 388–89, 398–400
validity 395–97
pensions 265
death-after-retirement 261
death-in-service 261
rights, loss of 239
performance
actual 427
alternative 131
expenses 148
interest 41–42, 189–90
minimum reasonable 71
pecuniary loss 189
repeat 412
periodic payments 164, 166
periodical payments order (PPO) 166–67, 235
perpetual injunctions see final injunctions
personal accident insurance policy 160–61
personal independence payment 156–57
personal injury 36–37
award 46
compensating advantages 148, 152–54
compensatory damages 163, 164, 165–69
compensatory damages, date for assessment of 169, 181
contributory negligence 133, 134
earnings, loss of 170, 172, 182
exceptions to normal time limits 311–13
factual causation 51
final prohibitory injunctions 444, 451
interest 171, 234–35, 301, 302, 304–5, 306, 307
mental distress or physical inconvenience 276, 288–91
misrepresentation 225
mitigate, duty to 130
non-state payments 158, 160–61, 162
pecuniary loss 199
proof of loss and loss of a chance 61–62, 63, 65–66
property damage including destruction 208, 214–15
pure economic loss 222
remoteness 87, 88–89, 96–97
reputation, loss of 274–75
social security benefits 156
personal injury losses 234–54
brain damage 237
child (healthy but unwanted), cost of bringing up 250, 252
children 247, 248, 249
claims by deceased’s estate 253–55
congenital abnormalities 249–50
contingencies of life 244
deprivations 235–36, 237
disabled child’s upkeep costs 249–52
disabled mother/healthy child and costs attributable to mother’s disability 251
discount rate 244, 245–46, 247
discount rate, negative 242, 245
disease 234
distress 237
divorce resulting from claimant’s injury 243
earnings, loss of 238, 241–43, 249–50, 253, 254
economic support, loss of 247
expectation of life, loss of 237, 251
funeral expenses 252–53, 254–55
future earnings, loss of 246, 247, 249
future pecuniary loss 234–35, 242, 244, 246–47, 249
gratuitous carers/third parties 240–43
handicapped in the labour market (Smith v Manchester Corp damages) 239
happiness, loss of 237
housekeeping capacity, loss of 242–43
Index-Linked Government Stock (ILGS) 242, 244, 245–47
life expectancy 244, 248
life expectancy prior to accident 248
living expenses 248–49
‘lost years’ 234–49, 254
lump sum 244, 249
medical, nursing and hospital expenses 239–41, 242–43, 253
mental distress 251, 252
multiplier method 244, 245, 246, 247–48, 249
National Health Service (NHS) 239–40
non-pecuniary loss 234–35, 242–43, 247, 249–50, 251–53
pain, suffering and loss of amenity 249–50, 253
past loss 242
pecuniary loss 234, 249–50, 251–53
pension rights, loss of 239
physical illness 234
physical inconvenience 237
pre-death 267
pre-trial pecuniary loss 234–35, 243
(p. 561)
pregnancy and childbirth and initial workless years, loss of 252–53
psychiatric illnesses 234
pure economic loss 250
special accommodation, cost of buying, fitting out and moving to 242
tariff system 235–36
unconsciousness 237
visiting costs 241–42
whiplash claims, fraudulent 238 see also claims by injured person
personal non-proprietary tort 349
personal service bars 460
personal service contracts 419–26, 436
private law 420–23
public law 423–25
specific performance, indirect 457–60
unfair dismissal legislation 425–26
phone-hacking breach of privacy 290–91
physical damage 88–89, 96–97, 222
physical illness 234
physical inconvenience 36–37, 237 see also mental distress or physical inconvenience
pleasure, loss of 278, 291–92
Polemis rule/test 86–87, 90
post-traumatic stress disorder 276
potency of conduct 85, 134
practice, loss of 272
pregnancy and childbirth and initial workless years, loss of 252–53
preservation order 496
Press, outrageous infringement of rights by 367–68, 377
privacy 12–13, 522
free speech 480
Human Rights Act 1998 22
phone-hacking breach 290–91
punishment for equitable wrongs 537
reputation, loss of 272
private information, misuse of 12–13, 521, 525
private international law 180
private law 18–20, 24, 420–23
private rights 454
privilege (free speech) 479
privity 201, 203–4, 317, 382–83
procedural autonomy 16, 298
procedural unfairness 425, 430
profit, loss of 192, 194, 195, 205, 215, 220, 221
compensating advantages 147
confidence, breach of 524–25
in contract 63–64
exceptional profit and irrecoverable loss 96
negotiating damages 323
property damage including destruction 210–11, 212
pure economic loss 227–29, 230, 231
real property damage 209
reliance damages 77
remoteness 91, 92, 94–95, 97, 98, 106
reputation, loss of 269–70, 273
SAAMCO principle 124
taxation 183
profit-stripping remedy 336
profits, unauthorised 534
prohibitory injunctions 442, 538
claimant’s conduct as bar to 486
delivery up of goods 495
and final mandatory injunctions 463
interim 469, 471, 538–39, 540
specific performance 401, 406–7, 408–9, 411
to restrain wrongful acts 467 see also final prohibitory injunctions
promise
bargain 40, 41
breach of 8, 9, 46, 496, 525–26
content of 187–88
gratuitous 429
promise-keeping 381, 401, 412
promissory estoppel 41
promissory notes 399
proof of loss and loss of a chance 58–74, 298–99
difficulty of assessment is not a bar 73–74
future or hypothetical events: assessment proportionate to chances 60–73
claimant’s hypothetical conduct 67–68
loss of a chance 63–66
loss consequent on actionable personal injury or death 65–66
loss of profits in contract 63–64
minimum obligation principle 68–73
proportionate damages, scale of 66–67
pure economic loss in negligence tort 64–65
sometimes loss is presumed 73
uncertainty about past fact: balance of probabilities 58–60
proof, standard of 299
property
defective 204
diminution in value 206–8, 209
rights infringement 342–43, 367–68
rights, real 443–44
wrongful use 324–25, 329–30 see also property damage
property damage 36
compensatory damages 163
factual causation 51
final prohibitory injunctions 444, 451
including destruction
goods 206–18
betterment 217–18
goods 209–17
pecuniary loss 205
real property 206–9
losses on death 267
mitigate, duty to 128–29
pecuniary loss 204, 205
pure economic loss 222
remoteness 88–89
proportionality 395
proprietary estoppel 12, 509–10, 511–12, 525–26, 538
proprietary rights 329–31, 351, 355
proprietary torts 348–49, 351–52, 355, 356–57
psychiatric illness 90–91, 234, 270–71, 291
distinguished from mental distress 276
public authorities 25–26, 27, 285
(p. 562) public interest 425
final mandatory injunctions 466
final prohibitory injunctions 446, 447, 449–50, 451, 453–54
injunctions 539
interim injunctions 472–73
restitution 356
public law 22–23, 24, 363, 423–25
public outrage, sense of 363–64, 376
public wrong, non-tortious 23–26
punitive damages 7–8, 9, 10–11, 19–20, 35, 360–78
agreed sum, award of 397
breach of contract 360–61
cause of action test, demise of 362–63, 368–70
claimant’s conduct 371
compensating advantages 153
compensatory damages adequate 370
criminal punishment 371
defendant’s conduct calculated to make a profit for himself 361–62, 364–67
express authorisation by statute 361–62, 367–68
final prohibitory injunctions 453
limitation periods 309
punishment for equitable wrongs 536
quantum 372–74
reform of law on 374–78
arguments for abolition of punitive damages 375
arguments for extending punitive damages on principled basis 375–76
Law Commission’s recommendations 377–78
and restitutionary remedies 346
specific performance 402
torts 361–71
oppressive, arbitrary or unconstitutional actions by servants of the government 361–64 see also exemplary damages
pure economic loss 8, 9, 46, 187, 222–33
compensating advantages 155, 156–57
limitation periods 311
mental distress or physical inconvenience 286–87
misrepresentation 223–28
aim of damages 223–26
expenses caused and gains forgone 226–28
negligence, acts or omissions under 231–33
contract or business, negligent interference with 231–32
services beneficial to claimant, negligent performance of 232–33
pecuniary loss 187
personal injury losses 250
proof of loss and loss of a chance 64–65
remoteness 86, 91, 96–97
wrongful infringement of intellectual property rights 228–30
wrongful interference with business or contract 230–31
quantum meruit 338, 352–53
quantum reflecting cost of living in different jurisdictions 27
quasi-contractual remedies 338
quia timet injunctions 442–43
claimant’s conduct as bar to 486
equitable damages 318
and final mandatory injunctions 463
interim 469
quiet enjoyment covenant, breach of 360–61
racial discrimination 90–91, 289–90, 291
rape 234
re-marriage of widow(er) 263, 265
reasonable care 45, 71–72, 188
reasonable certainty 66
reasonable contemplation contract test 98, –99, 100, 102, 103–4
reasonable foreseeability
compensatory damages 83
impecuniosity 145
intervening cause 111–12, 113
remoteness 86, 92, 94–95
as test for remoteness for all torts 89–91
Wagon Mound 86–87
reasonable man 86–87
reasonableness 210, 213
reasonableness restriction 50
reasonableness test 190, 198–200
reasonably contemplated test 95
rebuttable presumption 80, 81
receiver, appointment of 491–92, 538
redundancy payments due to injury 160
reinstatement costs 206, 207, 208
reinstatement or reengagement order 425
release fee 331, 354
release from contract 141
reliance damages 75–82
bad bargain 75, 78–81
pre-contractual expenses 75–76, 81–82
proof of loss and loss of a chance 60
protection of when direct protection of expectation interest is not barred 77
protection of where direct protection of expectation interest is barred 76–77
reliance interest 14–15, 39–40, 41, 42
Human Rights Act 1998 26
misrepresentation 223
restitution 525–26
SAAMCO principle 121–22, 124
remedies, combining 13–15
remedies for equitable wrongs 509–45
declaring rights 541
interest 542–43
limitation periods 543–44
remedies, inconsistent 346
remoteness 6, 7–8, 9, 91, 105, 106
agreed sum, award of 393
Arpad test of 220–21
breach of contract 91–106
Achilleas, qualification of traditional contract test required by 98–105
assimilation of contract and tort tests where there is contractual relationship 105–6
Cory v Thames Ironworks Co principle 97
disproportionate loss compared to contractual consideration: United States approach 97–98
(p. 563)
loss or damage, type of 94–97
traditional test 91–94
compensating advantages 148, 153
compensatory damages, date for assessment of 179
contributory negligence 134, 137
equitable compensation 512–13, 514
factual causation 51–52
impecuniosity 144, 145
interest 296–97, 298–99
mental distress or physical inconvenience 280–81, 282–83, 285–86
mitigate, duty to 131
negligence 231–32
pecuniary loss 192, 205
personal injury 249–50, 252–53
proof of loss and loss of chance 66
property damage including destruction 209, 214
SAAMCO principle 119–20, 124
specific performance 402
torts 86–91
concurrent contractual liability, stricter test for 91
reasonable foreseeability test 87–89
reasonable foreseeability as test for remoteness for all torts 89–91
Wagon Mound reasonable foreseeability test 86–87
wrongful interference with goods 219, 220–21
repair and/or replacement costs 48–49, 202, 206, 207, 208, 209–10, 211, 212, 217–18, 412
repairing covenant, breach of 492
repeat orders, loss of 269–70
repeat performance 412
replevin 497
representations, mere 223
repudiation of contract 73
agreed sum, award of 383, 384–85, 386
anticipatory 132, 506
compensating advantages 151
compensatory damages, date for assessment of 174
interest 297–98
reliance damages 78–79, 80
reputation, loss of 7–8, 9, 35, 36–37, 268–75
assessment of damages 273–75
award of damages 268–73
breach of contract 268–71
torts 271–73
mental distress or physical inconvenience 276
mitigate, duty to 129
non-pecuniary loss 268, 270–71, 272–73, 274–75
pecuniary loss 268, 269–73
personal injury losses 237
proof of loss and loss of chance 73
pure economic loss 222
remoteness 93
wrongful dismissal 268, 270–71
requirements contracts 460–61
res inter alios acta 153
resale price 191–93, 219–20
rescission of contract 137, 338–39, 439
restitutio integrum 206
restitution 9, 11
full 14–15
interest 295, 297, 298, 302, 542–43
for mistake of law 298
negotiating damages 325–26
pecuniary loss 200
restitution for equitable wrongs 525–36
confidence, breach of 532–35
dishonest assistance 535–36
fiduciary duty, breach of 526–32
bribes or secret commissions 529–32
secret or unauthorised profits 526–29
restitutionary remedies 335–59
alternative analysis 336
breach of contract 352–59
Attorney-General v Blake and its aftermath 356–59
law and analysis prior to Attorney-General v Blake 353–56
and unjust enrichment 352–53
disgorgement terminology as alternative to restitution 336–37
Edelman’s thesis 337–38
and punitive damages 375, 376, 377
restitution for wrongs 335–36
torts 338–52
account of profits 341–46
anti-restitution clauses 347–52
Devenish Nutrition Ltd v Sanofi-Aventis SA 350–52
Forsyth-Grant v Allen 350
Halifax Building Society v Thomas 349
money had and received 340–41
Phillips v Homfray 347–48
preference for tort over compensatory damages 339
punitive damages, relationship with 346
Stoke-on-Trent City Council v W & J Wass Ltd 348–49 see also restitution for equitable wrongs
restraint of trade covenants, breach of 475–76
restraint of trade doctrine 459–60
restrictive covenant, breach of 462
claimant’s conduct as bar to injunction 487, 488
equitable damages 317
final mandatory injunctions 466
final prohibitory injunctions 446, 455
indirect specific performance 459–60
negotiating damages 321, 324, 327, 329–30
restitution 355, 357–58
retail prices index (RPI) 166–67, 171, 246–47, 290
reverse burden of proof 78–79
right to life, infringement of 264
rights 18–20
constitutional, infringement of 363–64
declaring 9, 541
individual 453–54
primary 4
proprietary 329–31, 351, 355
secondary 4
to sue 204
value of, loss of 324
rights of way 221–22
rights-based theory 18–20
risk, assumption of 99
risk, fair allocation of 104–5
royalty fees 229, 230, 524–25
(p. 564) SAAMCO principle 117–27, 188
justification 120–22
SAAMCO ‘cap’ 123
scope of application and difficulties in applying 122–27
salary, loss of see earnings, loss of
sale of goods contracts 460–61, 493–94
sales, loss of 269
salvage value 209
scope of duty concept 119–20, 188
SAAMCO principle 121, 122–23, 124, 126
Scottish law 253
search orders 484, 485–86
secret or unauthorised profits 526–29
self-help remedies 13
selling value 206
Sempra Metals decision 298–301
serious breach of contract 432, 486
service out of the jurisdiction 13
services beneficial to claimant, negligent performance of 232–33
settlement agreement, breach of 332
severe hardship bar as defence to specific performance 447
sex discrimination 289–90, 291
sexual assault 234, 362–63
Shelfer principles 445–46, 449–50
sick pay 154–55, 158, 160–61, 162
simple interest 123, 295–96, 542
interest as damages 297, 299–300
interest on damages 301, 303–4, 305
single causative agent restriction 62–63
skill, duty of 514
slander 268
social security benefits 156–57
compensating advantages 153–54
like for like deductions 156–57
losses on death 265, 266–67
relevant period 156–57
small payments 157
sole franchise/distributorship contracts 460, 461
special accommodation, cost of buying, fitting out and moving to 242
specific performance 4, 5, 9, 10–11, 17–18, 19, 35, 401–39
accounting for loss 540
additional damages 437
adequacy of damages 402–15, 436
assessment of damages, difficulty in 407–8
Beswick v Beswick—radical interpretation 410–11
consumer’s remedies 412
contractual obligation to pay money 409
inability to pay damages 408–9
maintaining adequacy of damages hurdle 412–15
nominal damages and privity 410
termination of contract, immediate 409–10
uniqueness—substitute availability 403–7
agreed sum, award of 381, 384–85, 387
breach of contract 41–42
commercially unique goods 405–6
with compensation or abatement of purchase price 437–38
compensatory damages, date for assessment of 172, 173
conditional specific performance 438–39
conduct of claimant 432–35
acquiescence 434
as bar to injunction 490, 491
improper past conduct 432
laches 433–34
one who comes to equity must come with clean hands 432
one who seeks equity must do equity 433
serious breach 432
termination of contract, valid by claimant 434–35
confidence, breach of 522, 534
constant supervision objection 415–19, 428–29, 436
contract unfairly obtained 430
delivery up of goods 493–94, 495–96
efficient breach theory 413, 414
equitable compensation 515, 516
equitable damages 315–17
final mandatory injunctions 463–66
final prohibitory injunctions 454, 455–56
hardship, severe 431–32
impossibility 430–31
indirect 442, 456–61
personal service contracts 457–60
sale of goods contracts 460–61
injunctions 422, 423, 424, 442, 538
interim injunctions 405, 406, 408, 417, 420–21, 422, 469
interim mandatory injunctions 401–2, 482
laches 436
limitation periods 314
negotiating damages 323–24
no partial specific performance 435–36
no specific performance 438
non-compensatory cost of cure 48–49
pecuniary loss 201
personal service contracts 419–26, 436
private law 420–23
public law 423–25
unfair dismissal legislation 425–26
physically unique goods 404–5
prohibitory injunctions 401, 406–7, 408–9, 411
restitution 355, 357, 358
sentimental uniqueness 406
and severe hardship bar 447
stipulated remedy 436–37, 462
temporary 405, 417, 420, 421–22, 482
termination of contract 432
termination and damages, effect on 439
uncertainty 428–29, 436
uniqueness 407
valuable consideration, contracts not supported by 429, 436
want of mutuality 426–28, 433, 436
state compensation scheme 44–45
state recoupment scheme 156
statutory compensation scheme for unfair dismissal 270–71
statutory duty, breach of 15
contributory negligence 136, 139, 140
factual causation 54, 55
interest 298
personal injury 234
proof of loss and loss of a chance 62
property damage including destruction 214
(p. 565)
punitive damages 366
restitution 350
SAAMCO principle 122–23
torts 45
statutory interest 295, 296–97, 301, 304
and assessment date of damages 306–8
foreign currency liabilities 307–8
liabilities other than foreign currency liabilities 306–7
compensatory purpose 302–3
period payable 304–5
pre-judgment 301
rate 305–6
sterling-breach-date rule 177, 179–80, 181
stipulated remedy 436–37, 462
Stoke-on-Trent City Council v W & J Wass Ltd 348–49
strict liability 9, 43–45
contributory negligence 134, 142
remoteness 89–90
restitution 342–43
structured settlements 165–67
sub-buyer 191–92, 205–6
sub-contract 193
sub-sale 194
substantive law 4
substantive unfairness 430
substitute goods 192
substitution for an injunction 321–22, 323–24, 329–30
substitutive damages thesis 322
success fee 236
successive events 51–52, 53
super-injunctions 441
supervening event 107–8
tariff system 37
tariffs of value 35
taxation 182–84
corporation tax 183
Gourley principle 182–84
termination of contract 174
agreed sum, award of 386–87
immediate 409–10
specific performance 432, 439
valid by claimant 434–35, 491
‘thin skull’ principle 88
third parties 8
agreed sum, award of 382–83
compensating advantages 148, 152–62, 249
general factors influencing courts 152–55
non-state payments 158–62
social security benefits 156–57
compensatory damages, date for assessment of 169
contracts for benefit of 201–4
equitable compensation 513
equitable damages 317
injunctions 440–41
knowing receipt 509–10
losses on death 265
nominal damages and privity 410
pecuniary loss 190, 191–92
property damage including destruction 208, 213–15
wrongful interference 108 see also third party conduct
third party conduct 109–13
duty was to guard against such third party intervention 109–11
third party intervention other than where there was a duty to guard against it 111–13
third party debt order 5
time limits see limitation periods
torts
breach of contract 5–6, 8–9, 42–46
contributory negligence 133–38
final mandatory injunctions 462–65
final prohibitory injunctions 443–54
final quia timet injunctions 467–68
loss of reputation 271–73
mental distress or physical inconvenience 283–88
punitive damages 361–71
remoteness 86–91
restitutionary remedies 338–52
trade dispute defence 477–79
trade marks 342, 343, 351–52, 497–98
transaction costs 16–17, 414, 453
trespass
equitable damages 318
future 327
intentional 138
punishment for equitable wrongs 537
punitive damages 361, 362–63, 365
taxation 182
trespass to goods 38
proof of loss and loss of chance 73
property damage including destruction 206
punitive damages 368–69
restitution 340–41
wrongful interference with goods 219
trespass to land
final prohibitory injunctions 443–49, 451, 454
mental distress or physical inconvenience 283–84
negotiating damages 324–26, 327
property damage including destruction 206
punitive damages 368–69
recovery of land 497
restitution 341, 347, 348
wrongful interference 221
trespass to the person
contributory negligence 136–37
Human Rights Act 1998 24
punitive damages 371 see also assault and battery
triviality restriction 445–46, 451, 456
trust, breach of
equitable compensation 513, 515–16, 517, 519
limitation periods 543–44
prohibitory injunctions 538
remedies 509–10
Tulk v Moxhay principle 317
ultra vires action 25–26
uncertainty 58–60, 428–29, 436
unclean hands 496, 505
unconscionability 488
unconsciousness 36–37, 237
undercompensation 177, 179, 246–47
(p. 566) underliquidated damages clause 393–94
undue influence 338–39, 430
undue pressure 430
unemployment benefits 157
unfair advantage 430
unfair dismissal
mental distress or physical inconvenience 282
personal service contracts 421, 424, 425–26
reputation, loss of 270–71
uniformity 37, 273, 369–70
uniqueness 494
commercial 405–6, 494
physical 404–5, 494
sentimental 406
substitute availability 403–7
breach of contract to sell goods 403–7
breach of contract to sell land 403
breach of contract to sell shares or stocks 407
United States 16
Commercial Code 205–6
disproportionate loss compared to contractual consideration 97–98
indirect specific performance 459–60
mitigate, duty to 132
pecuniary loss 199
proof of loss and loss of chance 66
punitive damages 375
reliance damages 78
remoteness 101
Second Restatement of Contracts 41
sentimental uniqueness 406
universal credit 156
unjust enrichment 11–12, 19–20
agreed sum, award of 394–95
compensating advantages 155
interest 295, 298, 302, 542–43
punitive damages 365
restitution 335, 336–39, 340, 347, 349
unlawful conduct, future 318
unlawful conspiracy 367
unreasonable action 84–85, 130–31
use, loss of 202, 203, 207–8, 211, 213, 215–16, 221
temporary 220, 221
user principle 336, 524–25
valuable asset, loss of 330–31
valuable consideration, contracts not supported by 429, 436
valuation, negligent 83–84
value of money, property or services for damages assessment 172–76, 181 see also under compensatory damages, date for assessment of
vertical effect 22–23
vexation 277, 280, 281
vicissitudes of life 54
visiting costs 241–42
Wagon Mound test 86–87, 89–90, 106, 220–21
want of mutuality 426–28, 433, 436
warrant of execution 5
warranty, breach of 188
compensatory damages, date for assessment of 173, 174–75
contractual 39, 202, 227–28
misrepresentation 223, 225
mitigate, duty to 131
proof of loss and loss of chance 71–72
SAAMCO principle 121
weakness, exploitation of 430
whiplash claims, fraudulent 238
will theory of contract 40
‘without notice’ injunctions 484–85
workplace accidents 159–60
wrong, compelling undoing of 9
wrong has caused death 267
wrong, preventing 9, 10
wrongful act, neglect or default 256, 257–58
wrongful arrest 289
wrongful dismissal
compensating advantages 148, 149
compensatory damages, date for assessment of 169
interest 297–98
loss of reputation 270–71
mental distress or physical inconvenience 277, 282
mitigate, duty to 127–28
non-state payments 158–59
personal service contracts 423
proof of loss and loss of chance 64, 69, 71
punitive damages 360
social security benefits 157
taxation 182–83
wrongful enrichment 220, 221–22 see also restitutionary remedies
wrongful interference 219–22, 231–32
with business or contract 222, 230–31
by third party 108
delivery up of goods 493, 495
with goods 219–21, 222
with intellectual property rights 329–30
with land 221–22
wrongful occupation or use 221
wrongful use of property or land 324–25, 329–30
‘Wrotham Park’ damages 321, 323, 332