D – Damages
17/6/20
SAINSBURY’S SUPERMARKETS LTD v VISA EUROPE SERVICES LLC [2020] UKSC 24
A fee (MIF) payable to a card issuer under the rules of Visa and MasterCard payment schemes, had the effect of restricting competition in breach of article 101(1) of the Treaty on the Functioning of the European Union and ss 2 and 9 of the Competition Act 1998. The MIF is passed on to retailers who have no ability to negotiate the fees down, so the fees are determined by collective agreement rather than competition. Considers principles of assessment of loss [194]. The extent to which the retailers mitigated their loss by passing-on the MIF to suppliers and customers could only be a matter of estimation. The law does not require unreasonable precision in proof of the amount [225]. Having held that the trial judge was wrong to find the MIF was exempt under article 101(3), the Court of Appeal should not have remitted that issue for reconsideration. To do so would allow re-litigation which is contrary to the principle of finality in litigation [240].
11/3/19
TRIUMPH CONTROLS - UK LTD v PRIMUS INTERNATIONAL HOLDING COMPANY [2019] EWHC 565 (TCC)
Considers claims for breach of warranties in a sale purchase agreement, including principles applicable to the giving of proper notice of claims [112], disclosure requirements [327] and assessment of damages [486].
31/1/19
ASSETCO v GRANT THORNTON LLP [2019] EWHC 150 (Comm)
Damages awarded for auditors’ breaches of duty. Considers “loss of a chance” principles in assessing damages, the recoverability of trading losses resulting from a pattern of dishonest conduct, whether benefits must be brought into account, contributory negligence and relief from liability under s1157 Companies Act 2006.
31/8/17
ROYAL DEVON & EXETER NHS FOUNDATION TRUST v ATOS IT SERVICES UK LTD [2017] EWHC 2197 (TCC)
A claim for wasted expenditure was not excluded by a contract clause expressed to exclude liability for loss of profits, business, revenue, goodwill or anticipated savings, and/or indirect or consequential loss or damage. But any liability was limited by a clause expressed to cap the aggregate liability of either party under the contract for all defaults to specified sums.
27/6/14
COMAU UK LTD v LOTUS LIGHTWEIGHT STRUCTURES LTD [2014] EWHC (Comm)
On an application for summary judgment in respect of an alleged repudiatory breach of a contract for the supply of goods and services, the court held that, even if it had been minded to grant summary judgment, damages would have been nominal because the terms of the contract allowed the defendant to perform the contract in different ways, and included a right to terminate the contract subject to paying certain sums to the claimant. Damages were to be assessed on the basis of the defendant’s minimum contractual obligation so it had to be assumed that the defendant would have exercised its own right to terminate and the claimant would only have been entitled to damages for the profit as it might have made until such time as the defendant chose to exercise that right.
20/6/14
SAIPOL SA v INERCO TRADE SA [2014] EWHC 2211 (Comm)
Damages for breach of warranty under s 53(2) Sales of Goods Act 1979 reflect the first limb of Hadley v Baxendale (loss arising in the ordinary course) and does not require proof that the loss was in the contemplation of the parties.
11/4/14
PRIMARY GROUP (UK) LTD v ROYAL BANK OF SCOTLAND PLC [2014] EWHC 1082 (Ch)
By disclosing to an associated company a report into its customer’s affairs, the bank had breach its duty of confidentiality. But damages were limited to £5,000 because of the limited use made of the report. Refers to the need to prefer documentary evidence to witness recollection [20]. Contains useful summaries of the principles of incorporation of contract terms [176], collateral assurances [179], the banker’s duty of confidentiality [180], assessment of damages for breach of confidence [181] and the court’s discretion to refuse an inquiry as to damages [194].
27/3/14
WEST v IAN FINLAY & ASSOCIATES [2014] EWCA Civ 316
Considers the application of the Unfair Terms in Consumer Contracts Regs 1999 to an exclusion clause in a construction contract effectively limiting a contractor’s liability for loss for which it was responsible with others to the level of contribution which would be payable under the Civil Liability (Contribution) Act 1978 (regardless of the insolvency of the others who were liable). On the facts the clause was fair. It also satisfied the requirement of reasonableness in the Unfair Contract Terms Act 1977. The court also considered the correct approach to the award of interest [75] and the level of awards of damages for distress and inconvenience [84]. On the facts interest at 4.5% pa over base was appropriate and damages for distress were reduced to reflect the guidance in AXA Insurance UK Plc v Cunningham Lindsay UK (2007).
11/3/14
WELLESLEY PARTNERS LLP v WITHERS LLP [2014] EWHC 556 (Ch)
Solicitors were negligent in drafting an option in a limited liability partnership agreement which allowed an investor to withdraw half its capital contribution in the first 41 months of the agreement. The firm had not been given instructions to include that provision. The court summarised the principles to be applied in assessing loss of business profits on the basis of a loss of chance claim [183].
5/2/14
BISHOP v GOLDSTEIN [2014] EWCA Civ 10
Considers right of partner to damages for breach of partnership agreement leading to early consensual dissolution of the partnership.
24/1/14
GLENCORE ENERGY UK LTD v CIRRUS OIL SERVICES LTD [2014] EWHC 87 (Comm)
Considers quantum of damages for breach of contract of sale of goods by non-acceptance, under s 50 Sale of Goods Act 1979.
20/2/13
HOOPER v OATES [2013] EWCA Civ 91
Damages for a buyer's failure to complete the purchase of land on 30 June 2008 were rightly assessed by reference to the estimated open market value in September 2010, because on the facts there was no immediately available market in June 2008 and despite marketing the property the sellers had not been able to sell it any sooner.
9/11/12
AIR STUDIOS (LYNDHURST) LTD v LOMBARD NORTH CENTRAL PLC [2012] EWHC 3162 (QB)
Damages for breach of a contract for the sale of second hand goods were to be assessed under s 51(2) Sale of Goods Act 1979 by reference to the cost of the nearest equivalent second hand goods, not the cost of acquiring new goods.
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