28 Remedies: Damages

Basis of damages
There are three different bases on which damages may be claimed in Contract.

Expectation loss
This is the most common type of claim.
The aim is to put the claimant back in the position they would have been in, had the contract been
performed: Robinson v Harman .
For goods this will usually be the difference in cost between the value of the goods supplied and expected, or
could be the cost of cure (e.g. repair).
For services it will be the cost of putting the work right.
o A consumer surplus should be recognised, which is a non financial benefit the consumer was
expecting: Ruxley Electronics v Foresyth .
Lost profits are recoverable, so long as they are sufficiently certain: Chaplin v Hicks .

Reliance loss
Here the court will put the claimant back in the position they would have
been in, had the contract never been formed: Anglia TV v Reed .
This type of claim is suitable for cases where the loss is too uncertain. In Anglia
TV v Reed, Anglia TV didnt know what their profits would have been had their
TV show been produced.
The claimant can choose between the claiming on an expectation or reliance
loss basis.
For expectation or reliance loss damages the claimant must show they have suffered a loss due to the
defendants breach: The Mamola Challenger .

Restitutionary damages
Restitutionary damages are an award of damages which is not based upon the amount of loss the claimant
has suffered.
They are rarely awarded and have developed slowly in the UK. A brief history is given to answer part essay
questions with.
In A-G v Blake , George Blake was a notorious spy and published a book in breach of
an official secrets contract. The Crown had not suffered any loss, yet it was still
thought that they should be entitled to damages following the breach of the official
secrets contract. The Crown was awarded an account of profits from the book. This was
the first case in which restitutionary damages were awarded.
The next case was: Wrotham Park Estate v Parkside Homes . Land was built on
despite a restrictive covenant. 5% of the developers profits were awarded.
o Lord Nicholls stated this was based upon the benefit gained by the wrongdoer.
o Lord Hobhouse stated that this was a compensatory award based upon what
they could have negotiated for the release of the covenant. In WWF v WWF it
was stated that this was the correct basis for an award.
In Experience Hendrix v PPX factors were set out for an award of restitutionary
damages to be given:
o there must have been a deliberate breach of contract;
o there must be difficulty by the claimant in establishing financial loss; and
o the claimant had a legitimate interest in preventing the defendants profit
making activity.

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 Murder 75

Loss of control
This is also a partial defence which reduces murder to voluntary manslaughter and in doing so gives the
judge sentencing discretion.
Under s 54 Coroners and Justice Act 2009 loss of self control will be established where:
o the defendants actions in relation to the killing resulted from a loss of their self-control,
o the loss of self-control had a qualifying trigger; and
o a person of the defendants sex and age, with a normal degree of tolerance and self-restraint in the
same circumstances might have reacted in a similar way.

Defendants actions resulted from a loss of self-control

This is a question of fact.
It does not include revenge: s 54(4) CJA 2009 .
The reaction need not be sudden: s 54(2) CJA 2009
The defendant must produce sufficient evidence to show that they lost their self
control ( s 54(5) CJA 2009 ). The burden is then on the prosecution to disprove it
beyond reasonable doubt.
o There will be sufficient evidence if the judge thinks the jury may find the
defence could apply: s 54(6) CJA 2009 .
If one party to a killing succeeds with this partial defence it will not prevent other
parties being convicted of full murder: s 54(8) CJA 2009.

Qualifying trigger
There must be a specified qualifying trigger.
Under s 55 CJA 2009 , a qualifying trigger can be:
o a fear of violence against the defendant or a third party;
o grave circumstances caused the defendant to justifiably feel seriously wronged; or
o both of the above.
Sexual infidelity alone will not be sufficient under s 55(6)(c) CJA 2009 .
Whether the circumstances are grave and justifiable is an objective question
for the jury.
A fear of violence is a subjective question of fact.
Honour killings are unlikely to warrant this partial defence as a jury is unlikely
to consider the grounds to be grave or justifiable and it may constitute
revenge, which is excluded under s 54(4) CJA 2009.
An excuse to use violence is not sufficient under s 55(6)(a) CJA 2009 .

A person of the same age and sex would have acted in a similar way in the circumstances
Children have lower capacities for self control.
The Act implies that men and women act differently. A woman may feel more threatened in a violent
situation.

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