(i) Neither Bence nor McSherrys are non-delivery of goods cases. They are also, in my view, wrong and inconsistent with prior Court of Appeal authority (Slater v Hoyle & Smith Ltd [1920] 2 K.B. 11, Bankes, Scrutton and Warrington LJJ), and with the caselaw on non-delivery (Williams Bros(HL), Radocanachi). I am not alone in thinking this, see Treitel (1997) 113 L.Q.R. 188, Hawes (2005) 121 LQR 389

(ii) I don't think it is 'my' rule. Where we are talking about consequential loss we assess these at time of trial. Sale of goods cases are exactly the same as all others in this regard, and no other rule makes much sense. Parsons v Uttley Ingham concerned consequential loss, and is clearly right. Nobody cared about the value of the hopper at time of breach.

It is, however, an observable phenomenon that damages are not always assessed at time of trial, and we need to have some kind of explanation for that.

Rob