--------------------------------------------------------------------------------

From: Ralph M Cunnington
Sent: 02 April 2007 16:05
Subject: [RDG]

No such contrast I’m afraid. Counsel for the Federation argued that Wrotham Park damages were gain-based rather than compensatory, as Peter Smith LJ had held: [2006] EWHC 184 at [137]. On this basis the Federation argued that the remedy now sought by the fund was juridically similar to the relief (an account of profits) refused by Jacob J five years earlier: [2002] FSR 32, and therefore the Fund was not entitled to claim Wrotham Park damages either. Chadwick LJ rejected this argument, holding that Wrotham Park damages were sufficiently distinct from Blake damages to mean that there was no estoppel per rem judicatam (at [69]). He did, however, hold rather novelly (and I would suggest wrongly!) that both Wrotham Park damages and Blake damages are compensatory:

Lord Nicholls' analysis in Attorney General v Blake demonstrates that there are exceptional cases in which the just response to circumstances in which the compensation which is the claimant's due cannot be measured by reference to identifiable financial loss is an order which deprives the wrongdoer of all the fruits of his wrong. The circumstances in which an award of damages on the Wrotham Park basis may be an appropriate response, and those in which the appropriate response is an account of profits, may differ in degree. But the underlying feature, in both cases, is that the court recognises the need to compensate the claimant in circumstances where he cannot demonstrate identifiable financial loss.

In other words, there is a sliding scale of compensation ranging from the expectation damages to Wrotham Park damages to Blake damages! So presumably the remedy awarded in Boardman v Phipps was compensatory as well!