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Sender:
Michael Jackson
Date:
Tue, 3 Apr 2007 02:54:18 +0800
Re:
WWF

 

Participants may know that the adoption of a simple distinction between compensatory damages (incorporating restitutionary damages and covering the awards in Wrotham Park and Blake) on the one hand, and vindicatory damages on the other (including punitive damages), is one that Lord Scott has recently been advocating. Perhaps it is this view which Chadwick LJ is advancing in this case.

  

Quoting Jason Neyers:

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.


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