Dear all,
I hope you are well. Members of this list may be interested to know that, in addition to
Lewis on vindicatory damages, there has also been a new High Court case on damages where the defendant is a deliberate wrongdoer,
Berry v CCL Secure Ltd. While the case involves our statutory provision precluding misleading or deceptive conduct, I think the comments of the court in obiter are interesting more generally for tort and contract damages.
The facts are unusual too: involving efforts by an Australian joint venture which developed plasticised bank notes to sell this technology to Nigeria. The joint venture was accused of corruption in the media, which was how the plaintiff Berry (previously the
joint venture's agent) became aware that he had been fraudulently cut out of the deal with the Nigerian government.
I have summarised it on our Opinions on High blog for those who are interested. Ultimately, the High Court said that it was possible for a wrongdoing defendant to raise a counterfactual where it did not behave unlawfully, but that it must at least prove on
the balance of probabilities that there was a “substantial prospect” that it would have acted in that way, and that in this case, it did not prove this.
But there are some really interesting obiter comments too on damages more generally, and a passing reference to one of my favourite cases,
Armory v Delamirie (the victorious chimneysweep wins the value of the largest jewels!).
I will summarise Lewis in due course too. So many juicy remedies cases! What is a remedies academic to do with such riches?
All the best, Katy