Remedies and damages

Question 1

Remedies

Answer 1

they are divided into 3

1. legal remedies (common law remedies)
2. equitable remedies
3. remedies under a specific statue

Question 2

damages

legal remedy

Answer 2

the concept of damages, is to put the claimant (the injured party) into the position they would have been in if the contract had not been breached

this is smilar to the award of damages in tort law

damages are a legal remedy as they are available if the contract jas been breached and the clamaiant is as of right - they are entilited to it

• damages are subjective as courts will look at the facts of the case and award damages in ana ttempt to place teh victime where they would have been if the contract has been carried out = compensatory damage which is teh main typeof damages

Question 3

there are different types of legal damages teh courts can award

Answer 3

• pecuniary losses (financial losses)
• non-pecuniary losses (such as mental distress)
• compensatory damages
• nominal damages
• sunstantial damages
• wrotham park damages

Question 4

nominal damages

Answer 4

if there has been nothing actually lost form the breach of contract (therefore nothing to compensate e the claimant is still as of right allowed to claim for damages

staniforth v lyall

Question 5

staniforth v lyall

Answer 5

if there has been nothing actually lost form the breach of contract (therefore nothing to compensate e the claimant is still as of right allowed to claim for damages

Question 6

substantial damages (compensatory damages)

Answer 6

sometimes, these types of damages have been awarded where normally it would have been more appropriate to reward nominal damages

they are meant to be used when there has been actual loss

Experience Hendrix LLC v PPx Enterprise 20023

Question 7

Experience Hendrix LLC v PPx Enterprise 20023

Answer 7

after the death of Jimi Hendrix, D had been granting license to exploit master recording containing work featuring Hendrix, which breached a settlement agreement they had in 19723. no evidence that hsowed a financial oss had been suffered but teh courts held that a reaosnable paymnet should be made more than just nominal

legal pricjiple - a reasonable payment hsoudl be made more than just nominal

Question 8

wrotham park damages

Answer 8

this is rather than a compensatory damage

the claimant owned land which was subject to a restrictive covenant preventing building on it. However, the d build and sold the houses on the land. the claimant asked the court for an injunction order that the house be demolished. the courts would not grant an order of demolition of the houses on the basis that to do so would be unfair to inhabitants in the house instead the court decided to award damages to represent that the claimant might have accepted in exchange for the release of teh restrictive convenant (eventhough the claimant would never have agreed to this at any price)

• instead of working out how much teh innocent party has lost or how much the other party has gained, wrotham park damages try to quantify the sum which might reasonably have been negotiated between the parties - is a type of negotiated damages based on what the d would have been willing to pay to avoid the brech or keep teh claimant from taking certain action

the difficulty is not knowing where these should be awarded or nominal damages

• breach should involve an interference with a right that could have been subject to negotiation
• used when it is difficult to calculate the actual loss or damage suffered by the claimant

Question 9

Morris - garner v Onestep Ltd 2016

Answer 9

legal prnciple - wortham park damages should be used where it is idfficukt to caluclaye actual or traditional loss and hwere teh d conduct is omething canbe negotiated

it is akey exampleof wrotham park dmages provides clarification on the use of Wrotham park damages

used when it is difficult to calculate the actual loss or damage suffered by the claimant

• a claimant sought damages for a breach of contract but it was hard to decide what damages tro award in traditional manner. instead the claimant sought Wrotham park damages which is a type of negotiated damages based on what the d would have been willing to pay to avoid the brech or keep teh claimant from taking certain action

the main takeaway form this case regarding wrotham park damages is

• wrotham park dmaages are not automatically available - this case made it clear that wrotham park damages are not an automati remedy . They should only be awarded in cases where the claimant can prove that they suffered a loss, buyt the loss cannot be precily calulated or is too difficult to quanitfy traditional terms
• you meassure what they defedant would have to pay the claimant to obtain a realise or license from the breach - essentially using teh wilingness to pay priciple

Question 10

non - pecuniary losses (speculative damages)

Answer 10

general rule is that damages wont be awarded for non-pecuinary matter such as mental distress - Addis v Grampohone 1909

however the excpetion the rule is that damages can be awarded if teh sole purpose of teh contract was non- pecuinary

Question 11

Addis v Grampohone 1909 b

Answer 11

general rule is that damages wont be awarded for non-pecuinary matter such as mental distress

Question 12

jarvis v swan tours

Answer 12

legal priciple - exception of the pricniple in addis v gramphone is claimant can be awarded for non-pecuinary losses if the main purpose of teh contract was on non pecunary loss

however the exception of the general rule set out in addis v gramsphone whixh is that damages wont be awarded for non-pecuinary matters such as mental disstress howevever there is an exception of non-pecuinary losses . in thecae of Jarvis v swan tours is the exception damages can be awarded is the sole purpose of the contract was non- pecuinary

in this case the courts found that for disappointment would be awarded because the contract was entered into for specific provision of enjoyment and entertainment therefore he could get damages for being disappointed

Question 13

chaplin v hicks

Answer 13

same as jarvis v swan tours where the claimant was awarded dmaages based on los of chnace

Question 15

limitation of awarding damages

Answer 15

causation

remotenss

migration of loss

Question 16

causation

Answer 16

the loss must have been caused by the breach of contract

quinn v burch brothers

Question 17

quinn v burch brothers

Answer 17

breached the contract by not providing C with a step ladder as per tehri contract. C therefore used a testle table instead and fell and injured himself.

courts held that the breach provided the oppurtuunity for the injury but was not the cause ( they didnt make him use the trestle table)

it is thebut for test. but for the breach of contract would the claimant have suffered teh loss claimed

legal principle - losses must have been caused by the breach of contract if not damages wont be awarded

Question 18

remoteness

Answer 18

d will only be libale for the losses taht were reaosnbale forseeable as arising form the breach

hadley v Baendale 1854

remotness is 2 type test
the first part is objective - what loss is antrual consequence of teh breach? ( in teh case below is it late delivery)

the second part is subjective - based on specific knowledge of potential losses inmids on both parties when teh contract is formed

Question 19

hadley v Baendale 1854

Answer 19

a mill owner made a ocntract with a carrier to dleiver a crankshaft for his mill. The mill had be closed whilst wating for thecrankshift. The carrier did not knownthis. he said it would take one day however it was delayed and it took 7. C tried to cliam for loss of profit. courts heldf taht he could not claim becuase t was too remote - teh d did nit know that the C wouldhave to cose

legal priciple - d will only be libale for the losses taht were reaosnbale forseeable as arising form the breach

Question 20

remotness is 2 type test

Answer 20

the first part is objective - what loss is antrual consequence of teh breach? ( in teh case below is it late delivery)

the second part is subjective - based on specific knowledge of potential losses in the minds on both parties when teh contract is formed

the test has been further developed in the case of Vectorial laundry Ltd v Newman industries Ltd (1949)

Question 21

Vectorial laundry Ltd v Newman industries Ltd (1949)

Answer 21

contract to dleiver a boiler to teh laundry company but was not delivered until 5 months after the contract date. Laundry successfully sued loss of it usual prodits from the date of the breach. it was a natural consequence loss. Laundry aslo claimed for additional lost profits from a special contract that it has been unable to take up without the oiler. Claim failed as the specific contract was unknown to the D at the time teh contract was made.

legal pricipl e- further debeloped teh 2 part test for remoteness

• recoverabel loss should be measured agaisnt a tst of reaosnable forsebility
• foreseeability of loss is dependant on knowledge at the time the contract was made
• knowledge is two types; common knowledge and actual knowledge of the D. (what would be a reasonable man contemplate in the circumstances)

Question 22

h parsons (livestck) v Uttley Ingham 1978

Answer 22

D installed a pig nut hopper. the ventalation hatch was sealed duirng transit. Installer forgot to open it. lack of ventilation caused the nuts to go mouldy and many pigs died eating theese mouldy nuts. Court held that the death of the pigs would have been within the contemplation of the parties when they made their contract, therefore damages was not too remote

held - what courts considered as not oto remote

• this shows that a crucial elemnt of remoteness is to determine what was in the contemplation of the parties at the time the contract was made

Question 23

migration of loss

Answer 23

. claimants have to try and migrate their losses

• they cannot sit back and watch their losses grow
• they must try ad minimise them

Pilkington v wood 1953

Question 24

Pilkington v wood 1953

Answer 24

C brought a house and D his solicitor negligently failed to notice that the house had a defective title. the solicitor was held liable for the amount by which the houses value had lessened due to the bad title. c shortly after took up work elsewhere and suffered added loss as the house was hard to sell. however, the solicitor was not liable for the later loss because he could not have anticipated that C was shortly move

• the claimant does not need to go to extreme lengths to migrate their losses though. Only need to do what is reasonable the circumstances

for example in an anticipatory breach, they are not bound to sue immediately ( which would automatically migrate tehir losses) - British wastinghouse electric v Underground Electric railways (1912)

Question 25

British wastinghouse electric v Underground Electric railways (1912)

Answer 25

The court will balance the loss against gain when calculating the amount of damage

Question 26

categories of recoverable damages

Answer 26

1) loss of a bargain - places the claimant in the same financial position as if the contract had been properly performed

Question 27

to place the claimant in the same position can be seen in a number of ways

Answer 27

- the difference in the value of goods and services contracted for compared to wat they actually got - if there is a market, damages will be the difference between contract and market price -loss of profit not just for teh goods but the profit they could've made if they had the goods on time for e.g - loss of chance (this is a speculative loss and not usually recoverable but exception in Chaplin v Hicks

Question 29

Reliance loss

Answer 29

the expense incurred by a claimant who relied on a contract being performed Anglia television Ltd v reed 1972

Question 30

Anglia television Ltd v reed 1972

Answer 30

spent lots on preparing for a film. reed agreed to be teh main actor but then pulled out. Couldn't find a suitable replacemet so the flim wasnt made. anglia tv couldnt precit what its profit would be on the film need to finsh

Question 31

farley v skinner 2001

Answer 31

can also claim sometimes for the loss of an amenity - tehy wre bale to claim for satress nd discomfort

Question 32

expectation loss

Answer 32

this is usual of damages for breach of contract. refers to the inncoent partys loss of baragin includes profits it wouldve expected to recieve had teh contract been peformed aim of expectation loss is to put the imcoent party in teh same postiion as if teh contract has been peformed which is differenat to reliance of loss Eastern expenditures. Expenses incurred by the claimant in reliance if the contract being oefromed, aim is to put the claimant in the position they would’ve been in if the contract hadn’t been made, Can on,y use expectation or reliance, not both

Question 34

Restitution

Answer 34

This is a repayment if any money or other benefit that were given to the defendant in advance of the contract that is breached It restores money to them

Question 35

Liquidated damages

Answer 35

- the amount of damages are fixed by a term in the contract - courts will on,y accept if it is a accurate representation of loss - if not, it is seen as a penalty and not enforceable - how to determine, the difference between genuine liquidates damages and a penalty, as seen in Dunlop and pneumatic tyre - extravagant sum will always be a penalty - large sum for failures to pay a small debt us probably a penalty - sing,e sum operating for many different breaches is probably a penalty There is a rule outlines. Y the Supreme Court in cavendish square h9liding BV v tala el makdessi 2015

Question 36

What is the rule outlined by Supreme Court in Cavendish Square holding BV v talal el makdessi (2015)

Answer 36

Involves the sake if a meddle eastern media business. The contract stated that if the seller didn’t comply with the terms of the contract preventing him from competing with the buyer, he would lose his right to future payment that would otherwise have been due to him and he would have to sell him remianinh shares to the buyer at a vreetky reduced price. Court held that the provisions contained in the agreement,mets were here to protect the legitimate interests of the So under the new test, the party seeking to rely on the term must be able to show that the clause is to protect a legitimate interest and the amount is not unconscionable. Not fixed. Juudges can still be subjective

Question 38

Quantum merit

Answer 38

Three common circumstances where this is awarded will be made 1) if the contract for services where no price is stated 2) where the case shows that a fresh agreement can be implied in place of the original one 3) in discharge case where it is discharged via breach r the party has been prevented from full peformave

Question 39

Equitable re,eddies

Answer 39

These are not legal remedies, they are not as of right now Used when damages are inadequate Not constrained by remoteness or causation

Question 40

Specific performance

Answer 40

This is a type of equitable remedy It krders one party to perform their contractual obligations It is hard to grant specific performance It will not. E granted in personal service cases, cases of employment implossibikity and when the court cannot supervise the enforcement