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Ralph Cunnington
Mon, 12 Nov 2007 15:43:22 +0000
Devenish Nutrition


Members may be interested in the recent decision of Lewison J in Devenish Nutrition v Sanofi-Aventis [2007] EWHC 2394 (Ch) concerning the assessment of damages under Article 81 of the EC Treaty. The judgment is packed full with interesting (and controversial) comments on the measure and assessment of damages, include a concise and accurate taxonomy of damages at [14].

A point of particular interest was Lewison J's analysis of Wrotham Park and the other 'user' cases. He describes them as compensation for the invasion of the claimant's rights: 'It is precisely because he has suffered no loss that the law's response is to seek a different way to compensate him for the invasion of his rights' at [81]. It thus appears that Lewison J views Wrotham Park and the other user cases as examples of 'substitutive' or 'rights-based' compensation. But this conclusion is obscured somewhat by the fact that the discussion takes place under the heading 'Restitutionary award' (presumably because this was how it was pleaded by the claimant) and concludes, following Stoke on Trent v Wass (a user case and highly criticised at that) that 'it is not (yet) the law that a restitutionary award is available in all cases of tort' at [108].

Interestingly, Lewison J also refers to Chadwick LJ's infamous [59] in WWF commenting: 'the underlying feature of each remedy is that the claimant "cannot demonstrate identifiable financial loss". If, on the other hand, the claimant can demonstrate identifiable financial loss then principle would suggest that the compensation he receives should be commensurate with the loss that he demonstrates' at [98]. This is rather unilluminating. Just because user damages and account of profits are only available where compensatory damages are inadequate does not mean that they themselves are compensatory!


Ralph Cunnington

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