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Dear all,

I think the key to understanding Experience Hendrix LLC is in paragraph 26 of Mance LJ's judgment. Mance LJ makes it clear that this "reasonable payment for use value" is an objective measure. Although the actual profits made might be used to determine this objective value transferred, the fact that the defendant made profits is actually irrelevant to the *availability* of this measure. Mance LJ makes this clear when he says that the "reasonable payment" is still available even if NO profit is made (a tort case like Inverugie v Hackett might be a good example of this). Understood in this way it is impossible to see gain-based damages as a sliding scale of proportions of profit. It must be seen as a wholly separate measure from an award disgorging profits. Here is what Mance LJ said:

"In a case such as Wrotham Park the law gives effect to the instinctive reaction that, whether or not the appellant would have been better off if the wrong had not been committed, the wrongdoer ought not to gain an advantage for free, and should make some reasonable recompense. In such a context it is natural to pay regard to any profit made by the wrongdoer (although a wrongdoer surely cannot always rely on avoiding having to make reasonable recompense by showing that despite his wrong he failed, perhaps simply due to his own incompetence, to make any profit)."

Jamie