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Sender:
Andrew Burrows
Date:
Mon, 24 Mar 2003 11:09:02
Re:
New Case

 

Dear all,

The new case referred to by Christopher Kirkbride, Experience Hendrix LLC v PPX Enterprises Inc is at [2003] EWCA 323. The main question at issue was what monetary remedy was the claimant company (constituting the estate of Jimi Hendrix) entitled to for breach of a 1973 settlement agreement with a record company (PPX). The breach of the settlement agreement constituted the use by PPX of certain master tapes. The CA held that an award of damages comprising a reasonable sum for use of that material (based on a proportion of the advances and royalties received by PPX) should be awarded but that a full account of all profits made from the breach should not be ordered. Wrotham Park Estates was therefore applied and AttGen V Blake was distinguished. The CA accepted that it was not awarding damages to compensate for any financial loss to the claimant: indeed counsel for the claimant accepted that he could not offer any evidence as to there being any loss. It seems to me that the reasoning shows that there is a sliding scale of gain-based damages through from awarding a proportion of the profits made (as here) to a full account of all profits made. Careful justifications were given by Mance LJ for why, in contrast to Blake, a full account of all profits was not here appropriate (eg in contrast to Blake there was no relationship between the parties that came close to being fiduciary).

 


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