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Discussing the Hendrix case in my Restitution class today, we got on to the subject of why it might matter in practical terms whether an award of the amount which an innocent party C would have charged a wrongdoer D for the right to do what D wrongfully did is compensatory or restitutionary. We decided that C of P would probably not be available to D either way because he is a wrongdoer (sed quaere what did Lord Goff mean by 'wrongdoer' in Lipkin Gorman?). One of my students then suggested that D might argue subjective devaluation in response to a claim for a gain-based award, but could not argue this in response to a claim for a loss-based award. This then took us to Andrew Burrows' idea that where D has 'reprehensibly sought out' a benefit he should not be allowed to argue that he did not subjectively value it at its market rate - but this in turn then led us to the thought that this idea is not borne out by Ministry of Defence v Ashman where Mrs A deliberately trespassed on the MOD's property (having nowhere else to go), but was allowed to make a subjective devaluation argument nonetheless.

We haven't heard from Jamie Edelman yet, but perhaps he might wish to argue that Hendrix does not bear out Andrew's 'sliding scale' analysis or Steve's 'discretionary remedialism' analysis, but instead vindicates (FX: clank, clank) his view that there are two types of gain-based remedy for wrongdoing, viz restitutionary damages and disgorgement damages, that Blake is an example of the latter, and that Hendrix is an example of the former. Over to you, Jamie ...

Charles

P.S. None of my students would admit to listening to Jimi themselves, although several 'know someone who does'.