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RDG
online Restitution Discussion Group Archives |
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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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