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James Lee
Mon, 2 Apr 2007 17:05:29 +0100


And Chadwick LJ continues that "To label an award of damages on the Wrotham Park basis as a 'compensatory' remedy and an order for an account of profits as a 'gains-based' remedy does not assist an understanding of the principles on which the court acts." Does his use of inverted commas perhaps suggest that he realises that he is using "compensation" only in a very loose sense? I agree that it is a novel approach, and its tone towards recent academic analysis seems rather reminiscent of Munby Jís judgment on change of position in Commerzbank AG v Price-Jones. Building on Messrs Cunnington and Neyers' points, and although it is a tort case, where on this sliding scale would we place exemplary damages in a case such as Cassell v Broome?


Best wishes,


James Lee
Teaching Fellow
School of Law
The University of Reading
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Reading RG6 7BA
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From: Ralph M Cunnington
Sent: 02 April 2007 16:05
Subject: [RDG]

No such contrast Iím afraid. Counsel for the Federation argued that Wrotham Park damages were gain-based rather than compensatory, as Peter Smith LJ had held: [2006] EWHC 184 at [137]. On this basis the Federation argued that the remedy now sought by the fund was juridically similar to the relief (an account of profits) refused by Jacob J five years earlier: [2002] FSR 32, and therefore the Fund was not entitled to claim Wrotham Park damages either. Chadwick LJ rejected this argument, holding that Wrotham Park damages were sufficiently distinct from Blake damages to mean that there was no estoppel per rem judicatam (at [69]). He did, however, hold rather novelly (and I would suggest wrongly!) that both Wrotham Park damages and Blake damages are compensatory:

Lord Nicholls' analysis in Attorney General v Blake demonstrates that there are exceptional cases in which the just response to circumstances in which the compensation which is the claimant's due cannot be measured by reference to identifiable financial loss is an order which deprives the wrongdoer of all the fruits of his wrong. The circumstances in which an award of damages on the Wrotham Park basis may be an appropriate response, and those in which the appropriate response is an account of profits, may differ in degree. But the underlying feature, in both cases, is that the court recognises the need to compensate the claimant in circumstances where he cannot demonstrate identifiable financial loss.

In other words, there is a sliding scale of compensation ranging from the expectation damages to Wrotham Park damages to Blake damages! So presumably the remedy awarded in Boardman v Phipps was compensatory as well!

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