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Dear all,

I wonder whether we are all being unduly harsh on Lord Nicholls and the rest of the majority. He doesn't just take us on a tour of the cases and then lay down a rule that contradicts them. One of the things he does do is to look at the account of profits cases relating to the breach of fiduciary duties or confidentiality agreements and then says this is close enough. Lord Steyn in fact comments that it is analogous to the fiduciary cases. The majority then seems to believe that there is a gap in the law that needs filling; AG v Blake falls into it and so Blake loses. I'm not sure I agree with that, but it is certainly something on which reasonable people can differ.

As to Lord Nicholls not telling us in detail when these exceptional circumstances of his appear, this is not wholly without precedent. Lord Goff didn't tell us much about change of position in Lipkin Gorman. Presumably Lord Nicholls just wants it worked out on a case by case basis as Lord Goff did.

Having said that I for one would not want this hanging in the air for long. Lord Hobhouse is right to say that caution needs to be shown because of the potentially disruptive effect on commerce. One argument against too wide a concept of restitutionary damages would be that it provides a disincentive to efficient breach of contract, that we ought to be free to take on a more profitable contract elsewhere and pay damages to our original co-contractor and yet still make a profit and add to the aggregate wealth of the community. The only dictum guarding against this seems to be where Lord Nicholls comments that a breach enabling a party to enter into a more profitable contract elsewhere is not by itself sufficient reason for granting restitutionary damages. I'm not sure that goes far enough; certainly it leaves the door open for at least some efficient breaches to be remedied by restitutionary damages.

Duncan Sheehan