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Jason Neyers
Mon, 2 Apr 2007 12:46:42 -0400


One view of the passage you quoted is that the judge is using compensatory in the manner "necessary to undo the violation of the plaintiff's right" (i.e. all damages that are not designed to punish but cancel the violation are compensatory). In this sense, expectation damages, Blake damages and Boardman v Phipps damages are all compensatory since the aim is not to punish but to do corrective justice between the parties. In each of the situations, the remedy differs because the content of the right can be said to differ. This usage only seems strange because the Birks scientific view (compensation = factual loss, restitution = factual gain) has such cache, especially in the UK.


----- Original Message -----
From: Ralph M Cunnington
Date: Monday, April 2, 2007 11:04 am
Subject: RE: [RDG]
To: Jason Neyers

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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