![]() |
RDG
online Restitution Discussion Group Archives |
||||||||||||
![]() |
![]() |
||||||||||||
|
I am very interested by this sliding scale of gain-based
damages, and the rationale therefor. Based solely on Andrew Burrows' summary,
it looks to me that the CA are trying to compensate the claimant for some
fictional loss (the "reasonable sum for the use of that material" would
logically equate to some licence fee which the claimant could reasonably
have expected to be paid for the use of the master tapes) by partially
reversing the unjust enrichment of the defendant. This would seem to muddy
the water. The defendant's breach of contract (unjust factor) produced
profits (enrichment). Why should only some of this enrichment be reversed?
The CA accepts that there is no loss, but a partial reversal of the enrichment
must, it seems to me, be designed to provide the claimant with what the
CA considers to be appropriate compensation, rather than to reward the
wrongdoing defendant for its endeavours. Is the CA therefore providing
a restitutionary remedy to compensate the claimant for what they calculate
would have been his expectation interest had circumstances been different?
As to the distinction drawn between this
case and Blake
based on the relationship between the parties, this seems weak - it was
surely the contractual rather than any fiduciary duty between Blake and
his employer which rendered his enrichment unjust and required an account
thereof? The distinction arguably adds a new tier to the unjust factor
requirement, unless the suggestion is that for the wrongdoer, not having
quasi-fiduciary obligations provides a defence to a claim for restitution.
There seem to be two results of all of this: 1. depending
on the nature of fiduciary relations, a party may breach a contract safe
in the knowledge that they will be entitled to keep the resulting profits,
bar the proportion of which that the other party might have expected under
some fictional contract permitting the breach. 2. it will be difficult
to advise on quantum in relation to such a breach, as judges will have
to be hypothetical rather than simply looking to profits made.
I look forward to learning that I have fundamentally
misunderstood the issues!
Simon MacDonald
-----Original Message----- From: Andrew Burrows 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). <== Previous message Back to index Next message ==> |
||||||||||||
![]() |
![]() |
» » » » » |
|
![]() |
|||||||||
![]() |