Restitution Discussion Group Archives
| Sender: |
Steve Hedley |
| Date: |
Tue, 25 Mar 2003 19:31:56 |
| Re: |
Hendrix etc |
At 17:58 25/03/03 +0000, Andrew Burrows wrote:
At p 129 of Commercial Remedies (ed
Burrows and Peel, 2003) which has just been published by Oxford University
Press there appears the following (which reports the colloquium discussion
of these issues): "Once one had crossed the threshold for being able
to recover an account of profits for breach of contract, rather than
compensatory damages or specific relief, Lord Nicholls thought that
the measure of recovery could extend from expense saved through to stripping
a proportion of the profits made through to stripping all of the profits
made from the breach. The Wrotham Park Estate case (where 5 per cent
of the profits had been stripped) was therefore based on the same principle
as A-G v Blake (where all the profits had been stripped)."
Evidently, then, his lordship was not as well-informed
as he could have been.
The sum awarded in Wrotham Park was not 5 per cent of
the profits made, but 5 per cent of the profits that could reasonably
have been anticipated at the time of the defendant's misbehaviour. As
Jamie Edelman has already pointed out, it is inaccurate to describe an
award of this sort as a profit measure - it bears no relation to any profit
actually made, and it may be awarded even if the defendant in fact made
a loss.
And was the sum removed in Blake really profit? If George
Blake managed to write the book without incurring any expenses, he must
be unique amongst authors. If he didn't, then presumably the Lords took
MORE than 100 per cent of his profit.
The passage also neglects Simon Macdonald's point, that
application of the "sliding scale" seems to represent a PARTIAL reversal
of an unjust enrichment - a theoretical move that surely needs a slightly
better justification than has been given. Unless, that is, the purple
haze of unjust enrichment theory is to become yet more purple and hazy.
To sum up, then, the arguments so far adduced for the
"sliding scale" have been:-
1. alleged support in Hendrix (though not in any particular
paragraph, apparently), and
2. extra-judicial support from Lord Nicholls (in a passage
containing a basic error, which his editors did not correct).
Are there are further arguments in its favour, or is
this as good as it gets?
I presume Lord Nicholls is the "empire-builder"
to whom Steve Hedley is referring!
Actually, no. You can have another guess, if you like.
Steve Hedley
============================================= ansaphone : +44 1223 334931 Christ's College Cambridge CB2 3BU
FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE
www.stevehedley.com
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