Date: Fri, 17 Feb 2006 12:40:48

From: Andrew Tettenborn

Subject: Wrotham again

Colleagues --

In the midst of a grey February, some good sense on, & serious analysis of, Wrotham v Parkside, AG v Blake et al in Peter Smith J's long judgment in World Wide Fund for Nature (formerly World Wildlife Fund) v World Wrestling Federation Entertainment Inc [2006] EWHC 184 (Ch) (just out on BAILII).

Not surprisingly this started many years ago as a trademark / passing off spat between the wildlifers and the wrestlers over the use of all-too-memorable initials. The parties compromised, the wrestlers agreeing not to use the WWF initials or their logo in the course of business, except in particular circumstances. The wrestlers later broke that agreement (see the proceedings at [2000] FSR 32), and there was an enquiry as to damages. In the event the wildlifers put their case on the basis of dilution of the exclusivity of “WWF” and tarnishment by association: faced with the difficulty of proving loss, they asked for a buyout price à la Wrotham Park. The wrestlers said, no possibility. This was a bog-standard breach of contract case; if the wildlifers couldn't prove loss that was just tough; and they shouldn't be allowed to sneak under the wire by recharacterising their claim as a Wrotham Park one.

Peter Smith J sided with the wildlifers, at least on principle (though he told them to get their pleading act together). He concluded (i) that pace Lord Steyn, damages under Wrotham were essentially compensatory, not unjust enrichment-based; (ii) that since Blake they were available, fairly generally, as a possible remedy in any breach of contract where “the more traditional bases for compensating an innocent person for breach of contract would provide no or an illusory result.” (para 137); (iii) because Wrotham damages were compensatory, the intentionality or other quality of the defendant's wrongdoing was irrelevant (para 169 et seq); and (iv) that they were available, not as of right, but as a matter of judicial discretion (para 137), and hence the court could take into account matters such as whether delay by the claimant in asking for them had lulled the defendant into a false sense of security (para 174).

Of these, (i) to (iii) seem spot-on. I'm not so sure about (iv), though. In one way it may make sense to call these damages discretionary – i.e. the judge must properly compensate the claimant, but has some leeway in determining what proper compensation is in the individual case. But I can't see why you should take it further than this. We're talking about damages at common law, after all, not an equitable remedy. Furthermore, Peter Smith J said that we give Wrotham damages because traditional damages would provide illusory relief. If so, it seems a little odd that we should tell a claimant that because of the way he has behaved or other discretionary factors, we are going to give him a remedy that is merely illusory after all. In short, elsewhere in the law of damages there's no rule that bad behaviour by a plaintiff should deprive him of the appropriate measure of compensation; and I can't see any reason to apply one here.

Best

Andrew

Andrew Tettenborn
Bracton Professor of Law, University of Exeter, England

Tel: 01392-263189 (int +44-1392-263189)
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