Devenish (Charles Mitchell, 14 Oct 2008)

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Sender:	Charles Mitchell
Date:	Tue, 14 Oct 2008 12:43
Re:	*Devenish*

The CA's decision in Devenish has now been released. It features a lengthy discussion by Arden LJ of the principles governing restitutionary damages for torts, which she takes to be generally available unless they are precluded by Halifax or Wass and provided that they comply with the restrictions laid down for gain-based remedies for breach of contract in Blake. The first of these provisos apparently means that the tort must be 'proprietary', a conclusion that is out of line with case-law stretching back for many years that says e.g. that you can waive the tort of deceit. The second proviso also seems unfortunate, since the restrictive approach in Blake was specific to contract damages and extending the rules laid down there to all gain-based remedies for wrongdoing seems (a) out of line with what Lord Nicholls actually said, and (b) undesirable in principle. Happy reading!

Professor Charles Mitchell
School of Law
King's College London
Strand
London WC2R 2LS

tel: 020 7848 2290
fax: 020 7848 2465

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