Date: Fri, 30 Mar 2007 19:51

From: Robert Stevens

Subject: The Golden Victory

Jason wrote

At every conference that I attend, someone from England says something similar but I don't understand what this statement means: damages should be given that correlate to the right infringed, giving any more or any less doesn't take the right seriously but rather ignores it. Maybe I need to be enlightened?

The violation of some rights are only actionable upon proof of loss and the only remedy available is compensation for the loss suffered. So, if I slander you (unless it is the imputation of an imprisonable offence, of professional incompetence, certain contagious diseases and inchastity (for women)) this is not actionable per se. Only consequential loss, or 'special damages' are recoverable.

We could live in a society where lies in and of themselves gave rise to a claim for substantive damages, but that is not the choice the common law has made. Deceit requires consequential loss.

By contrast, for some rights the "violation of a right imports damage" (Neville v London Express Newspapers Ltd [1919] AC 368, HL, 392 per Viscount Haldane) so that substantial damages are available even absent the proof of loss. If I am detained against my will for 6 months I can obtain substantial damages, regardless of any consequential loss. Similarly if I am libeled, I can obtain substantial damages without needing to prove loss. Property rights are generally of this kind.

The issue is into which category damages for violating the contractual right to performance falls. Is consequential loss necessary or not? In the example I gave of the ring, there is no consequential loss but the law is that this does not prevent the award of substantial damages. There are cases suggesting that this should be extended to services too, which I cited.

Now I don't think I can prove that breach of contract should fall into the first or second category, that is a matter of judgment as to how important to treat the right. All I can do is try and demonstrate the choice made by the courts on this matter. I cannot prove to you into which category contractual damages ought to fall, anymore than I can prove that lies ought not to, by themselves, give rise to damages.

As it happens, I also think there are some rights which are not actionable at all at common law. So, you have a (moral) right against me that I do not insult you. That is not actionable even upon proof of consequential loss. Why not? Some rights are more important than others. How we rank rights is a matter of judgment and, frustratingly perhaps, there is no single yardstick by which this can be assessed.

RS

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