I find this difficult to accept. Whatever one thought of Lord Woolf's dicta in the Court of Appeal he at least attempted to set down some rules as to when a claim to the gain made would be permitted. After the decision of the House of Lords we are given very little with which to predict the outcome of future cases. All we are told is:

"No fixed rules can be prescribed. The court will have regard to all the circumstances, including the subject matter of the contract, the purpose of the contractual provision which has been breached, the circumstances in which the breach occurred, the consequences of the breach and the circumstances in which relief is being sought. A useful general guide, although not exhaustive, is whether the plaintiff had a legitimate interest in preventing the defendant's profit making activity and, hence, in depriving him of profit."

Why cannot rules be prescribed? What is meant by each of the tantalisingly undefined factors? How much weight is to be given to each of them? How do we spot a legitimate interest when we see one? Are saved expenses recoverable or only profits?

When the explanation for the result is the need to do "practical justice" this appears to be code for reaching a result for which rational explanation cannot be given except that it seems fair. At least the academics can continue to argue at length about when a claim for the gain made from a breach of contract ought to be allowed, as the House of Lords have not told us.

Two other points occur to me. In his discussion of the case of "skimped performance" Lord Nicholls appears to contemplate allowing a part refund of the price where the services paid for were inferior to those contracted for. This appears to me to signal the end of the requirement that a failure of consideration must be "total". Further it is unclear to me whether Lord Nicholls considers it to be a pre-requisite of recovery that the contract is terminated for breach.

The other point is a question of style. Both in Blake and in Alfred McAlpine v Panatown there is a gratifying willingness to cite academic work. But this tends to be done by way of vindication: "I am pleased to note that Professors X, Y and Z agree with me and I found their articles very helpful." It would surely be better if substantive arguments for or against a particular result were engaged with (with attribution) rather than breadth of reading being defensively shown off.

Robert Stevens