General

The concept of a remedy has rarely been subjected to rigorous analysis. Views may differ as to precisely what one is talking about. In this book, a remedy is used to denote the relief that a person can seek from a court. The focus is therefore entirely on judicial remedies; and not on what are sometimes termed ‘self-help’ remedies, which are available without coming to court, such as out of court settlements, termination of a contract, and the ejection of trespassers. Put another way, this book examines what a person can obtain from a court to counter an infringement (or threatened infringement) of his or her rights by a tort or breach of contract (or, in chapter 26, by an equitable wrong); but it is not concerned with any other legally permissible options open to a person to counter such an infringement.

Remedies for equitable wrongs

Torts and breach of contract are termed common law wrongs because they were historically developed in the common law courts. Equitable wrongs are civil wrongs that historically were developed in the Court of Chancery. Despite the fusion of the common law courts and the Court of Chancery by the Supreme Court of Judicature Acts 1873–1875, much of the substantive law has not been fused. One example is the continued distinction between common law and equitable wrongs. In a rational fused system, nothing should turn on whether a civil wrong is common law or equitable. But that is not the present law.

Form of compensatory damages, date for assessment, taxation

The general rule can be expressed as follows: a court must assess in a lump sum all past, present, and future loss resulting from the particular tort or breach of contract being sued for, because no damages can be later given for a cause of action on which judgment has already been given. The classic authority is Fitter v Veal, where the claimant had been awarded £11 damages against the defendant in an action for assault and battery. His injuries proved to be more serious than at first thought and he had to undergo an operation on his skull. It was held that he could not recover for this further loss in a new action.

Compensating advantages

The compensatory aims require the courts to assess not only the position the claimant would have been in if the breach of contract or tort had not been committed but also its actual position as a result of the tort or breach of contract, so that damages can make up the difference. Where the claimant’s actual position has been, or will be, improved by benefits acquired subsequent to and as a result of the tort or breach of contract, one might expect (in accordance with the compensatory aims) that such benefits would be taken into account—if they are ignored the claimant will be left in a better position than if the contract had been performed or if no tort had been committed. In a nutshell, one might expect ‘compensating advantages’ to be deducted or, as it is sometimes alternatively expressed, that losses mitigated would not be compensated. But in fact compensating advantages are often not deducted. Our concern here is to indicate when this is so.

The impact of the Human Rights Act 1998

The enactment of the Human Rights Act 1998 (HRA 1998) has raised a number of novel issues for English law. But the impact of the Act on the subject matter of this book has been limited. That impact is best understood by clarifying that there are two main respects in which the Act is relevant to civil wrongs.

Negotiating damages

‘Negotiating damages’ are assessed according to the price which, prior to the wrong, the claimant could reasonably have charged the defendant for releasing the defendant from the duty that has been broken. In what is now the leading case of Morris-Garner v One Step (Support) Ltd, the view of the Supreme Court was that damages assessed in that way are best labelled ‘negotiating damages’.

Specific performance

Specific performance is an equitable remedy which enforces a defendant’s positive contractual obligations: that is, it orders the defendant to do what he or she promised to do. It is therefore a remedy protecting the claimant’s expectation interest, the justification for such protection resting ultimately on the morality of promise-keeping. Prohibitory injunctions also enforce contractual promises, but differ in that the promises in question are there negative. However, if what is in form a prohibitory injunction, in substance orders specific performance, or if the courts consider that in practice the injunction amounts to specific performance, it is governed by specific performance principles and is dealt with in this chapter.

Contractual reliance damages

The term ‘reliance interest’ was coined by Fuller and Perdue, whose classic article ‘The Reliance Interest in Contract Damages’ first clarified and explored the different possible objectives of damages for breach of contract. The aim of damages protecting the reliance interest is, according to Fuller and Perdue, ‘… to put the plaintiff in as good a position as he was in before the promise was made’. This can alternatively and preferably be expressed as aiming to put the claimant into as good a position as she would have been in if no contract had been made.

Equitable (compensatory) damages

Prior to 1858 there was probably some power, albeit very restricted, to award damages in equity in addition to specific performance. But this is of merely historical interest, because by the Chancery Amendment Act 1858, s 2 (Lord Cairns’s Act) the Court of Chancery was given power to award damages ‘in addition to or in substitution for [an] injunction or specific performance’. This power to award what are commonly referred to as ‘equitable damages’ is now vested in the courts by the Senior Courts Act 1981, s 50. As regards damages in addition, the power is self-explanatory—whenever an injunction or specific performance is granted, damages can be added. But when may damages in substitution be awarded?

Personal injury losses

Personal injury includes disease and physical illness as well as, for example, cuts, bruises, broken bones, loss of limbs or loss of the use of limbs, blindness, deafness, and brain damage. Recognised psychiatric illnesses are included. Damages have also been awarded for the physical and mental effects of a rape or sexual assault.