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MAKING SENSE OF MESNE PROFITS: REMEDIES

Published online by Cambridge University Press:  27 October 2021

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Abstract

This is the second of two articles about cases in which awards of “mesne profits” have been made against defendants who have occupied claimants’ land. The first article argues that the facts of cases where such awards have been made variously support claims in tort, contract or unjust enrichment and that practical consequences can flow from categorising the cases in one way or another. One is that different rules affect the assessment of remedies awarded to claimants depending on the claim that was made and the remedy that was awarded. The present article develops this point by examining the assessment principles governing “mesne profits” awards, according to whether these are classified as compensatory damages in tort, restitutionary damages in tort, orders that a defendant perform a contractual duty to pay a debt, compensatory damages for breach of contract, or orders that a defendant make restitution of an unjust enrichment.

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Copyright © Cambridge Law Journal and Contributors 2021

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Footnotes

*

Q.C. (Hon.), F.B.A., Professor of Law, University College London.

**

Fellow and Tutor in Law at Trinity College, Oxford and Associate Professor of Property Law, Oxford University.

We thank Neeva Desai for her research assistance. For their detailed comments on drafts, we thank Jessica Hudson and the anonymous CLJ referees. We presented an earlier version of this article as part of the Global Seminars in Private Law Theory series and we thank the series organiser, Lionel Smith, and the seminar participants.

References

1 Mitchell, C. and Rostill, L., “Making Sense of Mesne Profits: Causes of Action” [2021] C.L.J. 130Google Scholar.

2 [2018] UKSC 20, [2019] A.C. 649.

3 Ibid., at [23].

4 In this respect, our analysis differs from that of Mitchell McInnes, which seems to be centred on the idea that, in the relevant cases, C is deprived of a legal right to control a thing (“dominium”): McInnes, M., “Gain, Loss and the User Principle” [2006] R.L.R. 76Google Scholar, esp. 81, 85; criticised in Rotherham, C., “Wrotham Park Damages’ and Accounts of Profits: Compensation or Restitution?” [2008] L.M.C.L.Q. 25, 4247Google Scholar; Barker, K., “‘Damages Without Loss’: Can Hohfeld Help?” (2014) 34 O.J.L.S. 631, 640–41Google Scholar.

5 As in e.g. Viscount Chelsea v Hutchinson (1996) 28 H.L.R. 17 (C.A.); Graves v Graves [2007] EWCA Civ 660, [2008] H.L.R. 10.

6 Goodtitle v Tombs (1770) 95 E.R. 965, 967 (K.B.).

7 Mortimer v Shaw (1922) 66 D.L.R. 311 (Saskatchewan C.A.).

8 J.S. Saunders, The Law of Pleading and Evidence in Civil Actions (London 1828), vol. 2, 670; Symonds v Page (1830) 148 E.R. 1322 (Ex.); Bramley v Chesterton (1857) 140 E.R. 548 (C.P.). See also Anderson v Bowles (1951) 84 C.L.R. 310, 322.

9 Different views have been expressed as to whether damages to compensate for a diminution in the capital value of the land count as awards of “mesne profits”. Some judges have seemingly said that they do: e.g. Dunn v Large (1783) 99 E.R. 683; but others have treated them as falling outside the scope of this category: e.g. Ramzan v Brookwide Ltd. [2011] EWCA Civ 985, [2012] 1 All E.R. 903, at [71] (Arden L.J.). See also Associated Deliveries Ltd. v Harrison (1984) 50 P. & C.R. 91, 103–04 (C.A.) (Dillon L.J.); Nortask Pty. Ltd. v Areva Solar KCP Pty. Ltd. [2018] QSC 144, at [146]–[154]. This illustrates a general theme of our discussion, that the term “mesne profits” is ambiguous and imprecise and the law would do better without it. A related point is that, even at its broadest, the term “mesne profits” does not encompass the entire field of damages for trespass. For example, exemplary and aggravated damages are available as a remedy for trespass in appropriate cases, but have never been regarded as “mesne profits”: see e.g. Horsford v Bird [2006] UKPC 3, [2006] 1 E.G.L.R. 75, at [14]; Ramzan v Brookwide [2011] EWCA Civ 985, at [80] (Arden L.J.).

10 Ministry of Defence v Ashman (1993) 66 P. & C.R. 195, 200 (C.A.) (Hoffmann L.J.). See also Mortimer v Shaw (1922) 66 D.L.R. 311, 312 (Lamont J.A.); Balanced Securities Ltd. v Bianco (No. 2) [2010] VSC 201, (2010) 27 V.R. 599, at [16]; Cavenagh Investment Pte Ltd. v Kaushnik Rajiv [2013] SGHC 45, at [52].

11 Remoteness: Bramley v Chesterton (1857) 140 E.R. 548; Esperance Cattle Company Pty. Ltd. v Granite Hill Pty. Ltd. [2014] WASC 279, (2014) 47 W.A.R. 318, at [457]–[460]. Mitigation: Compatriot Holdings Ltd. v City Partnership Ltd. [2009] 3 E.G.L.R. 153 (County Ct), at [94]–[98]; and see also Hohepa v Piripi-Waima C30A [2019] NZMAC 8, at [41]–[46].

12 Ministry of Defence v Ashman (1993) 66 P. & C.R. 195; Ministry of Defence v Thompson (1993) 25 H.L.R. 552 (C.A.); Barrett v Morgan [1997] 1 E.G.L.R. 1; Shi v Jiangsu Native Produce Import & Export Corp [2009] EWCA Civ 1582; Kwang v Yokkei [2016] C.C.J. 9 (A.J.), (2016) 88 W.I.R. 339.

13 E.g. Stoke-on-Trent C.C. v W. & J. Wass Ltd. [1988] 1 W.L.R. 1406, 1415 (C.A.) (Nourse L.J.). Note that in Inverugie Investments Ltd. v Hackett [1995] 1 W.L.R. 713 (P.C.) the issue whether restitutionary damages should be available in trespass cases did not arise for decision, and was not considered by the court, because the point was not pleaded: ibid, at 715. The case was therefore silent on the availability of restitutionary damages for trespass to land.

14 E.g. Whitwham v Westminster Brymbo Coal & Coke Co. [1896] 2 Ch 538 (C.A.); Swordheath Properties Ltd. v Tabet [1979] 1 W.L.R. 285 (C.A.).

15 Stoke-on-Trent C.C. v Wass [1988] 1 W.L.R. 1406, 1416. See also Bocardo S.A. v Star Energy UK Onshore Ltd. [2010] UKSC 35, [2011] 1 A.C. 380, at [118]–[122] (Lord Clarke). The principle was also applied in cases involving property other than land, e.g. Strand Electric and Engineering Co. Ltd. v Brisford Entertainments Ltd. [1952] 2 Q.B. 246 (C.A.).

16 For an illustrative statement of this widely held view, see E. Cooke, “Trespass, Mesne Profits and Restitution” (1994) 110 L.Q.R. 420, 422.

17 For a clear judicial statement of the distinction between loss which is susceptible of measurement in money and loss which is not, see Wright v British Railways Board [1983] 2 A.C. (H.L.) 773, 777 (Lord Diplock).

18 E.g. A. Burrows, “Are ‘Damages on the Wrotham Park Basis’ Compensatory, Restitutionary or Neither?” in D. Saidov and R. Cunnington (eds.), Contract Damages: Domestic and International Perspectives (Oxford 2008).

19 E.g. R. Stevens, Torts and Rights (Oxford 2007), ch 4.

20 E.g. Inverugie Investments v Hackett [1995] 1 W.L.R. 713, 718.

21 Affirmed Prudential Assurance Co. Ltd. v HMRC [2018] UKSC 39, [2019] A.C. 929, at [47].

22 [2018] UKSC 20, at [26]. Lord Reed's characterisation of C's position is expressed in language that we have already described as problematic, but we will defer discussion of this point for a moment more.

23 Ibid., at [30].

24 [1974] 1 W.L.R. 798 (Ch).

25 [2018] UKSC 20, at [54].

26 Ibid., at [95].

27 Ibid., at [54].

28 Cf. E. Peel, “Negotiating Damages after One Step” (2019) 35 Journal of Contract Law 216, 226.

29 [2018] UKSC 20, at [26].

30 Ibid., at [30], [92], [95]. A passage in Lord Sumption's judgment gives rise to a similar problem of interpretation: [2018] UKSC 20, at [110].

31 A. Burrows, “One Step Forward?” (2018) 134 L.Q.R. 515, 518. See also A. Burrows, “Negotiating Damages” in C. Mitchell and S. Watterson (eds.), The World of Maritime and Commercial Law: Essays in Honour of Francis Rose (Oxford 2020), 300–03; P.S. Davies, “One Step Backwards: Restricting Negotiating Damages for Breach of Contract” [2018] L.M.C.L.Q. 433, 438; Josias Senu, “Negotiating Damages and the Compensatory Principle” (2020) 40 O.J.L.S. 110, 127–29.

32 R.J. Sharpe and S.M. Waddams, “Damages for Lost Opportunity to Bargain” (1982) 2 O.J.L.S. 290.

33 Ibid., at 290.

34 E.g. Penarth Dock Engineering Co. Ltd. v Pounds [1963] 1 Lloyd's Rep. 359 (Q.B.); Wrotham Park v Parkside [1974] 1 W.L.R. 798.

35 See e.g. Surrey C.C. v Bredero Homes Ltd. [1993] 1 W.L.R. 1361, 1369 (C.A.) (Steyn L.J.); Marathon Asset Management LLP v Seddon [2017] EWHC 300 (Comm), [2017] 2 C.L.C. 182, at [195]–[196] (Leggatt J.); J. Edelman, Gain-based Damages: Contract, Tort, Equity and Intellectual Property (Oxford 2002), 99–103; Rotherham, “Wrotham Park Damages”, 31–35.

36 E.g. [2018] UKSC 20, at [30]: “the person who makes wrongful use of the property prevents the owner from exercising his right to obtain the economic value of the use in question.”

37 Cf. W. Day, “Restitution for Wrongs: One Step Forwards, Two Steps Back” [2018] R.L.R. 60, 65.

38 See also [2018] UKSC 20, at [69], [76], [79], [83]–[84], [89], [92]–[93].

39 Ibid., at [91].

40 Stevens, Torts and Rights, 62.

41 Watson, Laidlaw, & Co. Ltd. v Pott, Cassels, & Williamson 1914 S.C. (H.L.) 18, 31 (Lord Shaw).

42 N. McBride, “Restitution for Wrongs” in C. Mitchell and W. Swadling (eds.), The Restatement Third: Restitution and Unjust Enrichment (Oxford 2013), 274. See also J. Raz, “Rights and Individual Well-being” in J. Raz (ed.), Ethics in the Public Domain (Oxford 1995), 48–49; J. Edelman, “The Meaning of Loss and Enrichment” in R. Chambers et al. (eds.), Philosophical Foundations of the Law of Unjust Enrichment (Oxford 2009), 215. It is important to distinguish the view that, in the relevant cases, C lost factual control of a thing from two similar, but significantly different, loss-oriented explanations: first, that C lost the opportunity of obtaining an injunction to prevent the wrong: Tamares (Vincent Square) Ltd. v Fairpoint Properties (Vincent Square) Ltd. [2007] EWHC 212 (Ch), [2007] 1 W.L.R. 2167, at [3]–[6], [22] (Gabriel Moss Q.C.); second, that C lost the legal power to obtain, or to trigger the court's jurisdiction to award, injunctive relief to prevent the wrong: Barker, “Damages Without Loss”.

43 E.g. Whitwham v Westminster Brymbo Coal [1896] 2 Ch 538; Swordheath Properties v Tabet [1979] 1 W.L.R. 285. We think that Inverugie Investments v Hackett [1995] 1 W.L.R. 713 was a restitutionary damages case but space does not allow us to make this argument here.

44 Kwang v Yokkei [2016] C.C.J. 9 (A.J.), at [11], [56]. See also Barrett v Morgan [1997] 1 E.G.L.R. 1, 1, where the trial judge seems to have accepted that such an award was available in principle but held that there had been no trespass; the latter finding was affirmed by the C.A.: [1999] 1 W.L.R. 1109; but reversed by the H.L.: [2000] 2 A.C. 264.

45 (1993) 66 P. & C.R. 195. See also Ministry of Defence v Thompson (1993) 25 H.L.R. 552.

46 The proceedings were brought on the assumption that the local authority, rather than Mrs. Ashman herself, would pay the amount of the award made against her.

47 (1993) 66 P. & C.R. 195, 200–01.

48 Ibid., at 199.

49 J. Edelman et al. (eds.), McGregor on Damages, 21st ed. (London 2021), paras. 39-054–39-055.

50 In our first article on “mesne profits”, we use different language to refer to what we describe here as “factual control of property”, speaking there of the “opportunity to use property”. This is merely a terminological difference and the two labels refer to the same thing.

51 In One Step, Lord Reed recognised that the control of property is not always a “valuable asset”: [2018] UKSC 20, at [30], [95]; and on the unusual facts of some cases it is worth nothing, e.g. Wigan B.C. v Scullindale Global Ltd. [2021] EWHC 779 (Ch).

52 Viscount Chelsea v Hutchinson (1996) 28 H.L.R. 17, 19 (C.A.); Graves v Graves [2007] EWCA Civ 660, at [44]–[53].

53 Lamru Pty. Ltd. v Kation Pty. Ltd. (1998) 44 N.S.W.L.R. 432, 439 (N.S.W.S.C.); Rock Bottom Fashion Market Pty. Ltd. (in liq.) v H.R. & C.E. Griffiths Pty. Ltd. [1998] QCA 123, [1998] A.N.Z. Conv. R. 549; Jones v Merton L.B.C. [2008] EWCA Civ 660, [2009] 1 W.L.R. 1269, at [24] (Wilson L.J.); Sze Tu v Jam Studios Pty. Ltd. (No. 2) [2018] NSWSC 1611, at [20]–[23].

54 Lau Wing Keung v Ng Ah Kui [1984] HKCA 238, [1984] H.K.L.R. 241; Puhinui Farms Ltd. v I..H. Wedding & Sons Ltd. [2008] NZHC 130, at [205].

55 Earlrose Golf & Leisure Ltd. v Fair Acre Investments Ltd. [2009] EWCA Civ 1295; Curry v HSBC Bank Plc. [2021] NICh 1, at [60]–[61], [64] (C's expert evidence as to market rental value of property rejected because comparison drawn with property elsewhere). Identifying relevant comparators may be impossible in which case a different approach must be taken, as in e.g. Queenstown Central Ltd. v March Construction Ltd. [2016] NZHC 1884.

56 Graves v Graves [2007] EWCA Civ 660, at [48]; Woodley v Woodley [2018] WASC 333, at [102]; Baynton-Williams v Baynton-Williams [2020] EWHC 625 (Ch).

57 In the absence of wrongful ouster, no claim lies between co-owners for “mesne profits” conceived as damages for trespass: Cheung Lai Mui v Cheung Wai Shing [2021] HKFCA 19, (2021) 24 HKCFAR 116.

58 (1998) 43 N.S.W.L.R. 695, 704 (N.S.W.C.A.); noted H. Conway, “Co-owners, Ouster and Occupation Fees” [2000] Conv. 49. See also E. Cooke, “Equitable Accounting” [1995] Conv. 391, 402.

59 Lyko v Derkatch [2018] SADC 90, at [716]; Burton v Prior [2019] NSWSC 518, at [275]–[280].

60 The Hon. Lord Justice Lewison et al. (eds.), Woodfall, Landlord and Tenant (London, 2020 release), vol. 1, para. 19.013.1.

61 [2015] HKDC 87, [2015] 2 H.K.C. 482, at [23].

62 Ibid., at [24].

63 Ibid., at [26].

64 Ibid., at [28].

65 Medi-Aid Centre Foundation Ltd. v Joys Child Care Ltd. (No. 2) [2019] NSWSC 1105, at [45], endorsing B. Edgeworth, Butt's Land Law, 7th ed. (Sydney 2017), para. 7.1570.

66 [1948] 2 All E.R. 283, 284 (K.B.). Cf. Progressive Mailing House Pty. Ltd. v Tabali Pty. Ltd. (1985) 157 C.L.R. 17, 39 (Brennan J.).

67 [1989] HKCA 288, [1989] 2 H.K.C. 54, at [20]–[21]. See also Barclays Bank Ltd. (Trustees of G.F. Day, deceased) v Jones [1955] J.P.L. 822; Lau Wing Keung v Ng Ah Kui [1984] H.K.L.R. 241.

68 Ibid., at [23]. See too Henderson v Squire (1869) L.R. 4 Q.B. 170, 173 (Cockburn C.J.); Barclays Bank Ltd. v Jones [1955] J.P.L. 822.

69 [2018] EWCA Civ 162.

70 Ibid., at [21].

71 Edelman et al., McGregor on Damages, para. 39.046, n. 265. In Pickering v Hughes [2021] EWHC 1672 (Ch) an argument of this kind was rejected but one reason for this was that different improvements had been made to the property by different parties.

72 Tang Hang Wu, “An Unjust Enrichment Claim for the Mistaken Improver of Land” [2011] Conv. 8, and the literature cited at 21, n. 61; he argues that a claim in unjust enrichment should now be recognised, but there is no sign of this in the English cases. Cf. Montreuil v Ontario Asphalt Co. (1922) 63 S.C.R. 401 (Sup. Ct. of Canada), esp. at [100]–[106]; Lollis v Loulatzis [2007] VSC 547, at [230] – both cases in which a mistaken improver was permitted to set off the cost of improvements against liability for mesne profits, but not to recover any excess. And cf. M. McInnes, “Improvements to Land, Equity, Proprietary Estoppel and Unjust Enrichment” (2016) 2 Canadian Journal of Comparative and Contemporary Law 421, arguing that Canadian law should allow claims in unjust enrichment for the whole amount.

73 See too Indian Code of Civil Procedure 1908, s. 2(12); Burrell v Humphrey [1951] N.Z.L.R. 262. And cf. Palmer v Lane [2001] EWCA Civ 1670, at [4]–[5], considering but not deciding whether a reduction should be made to reflect the fact that C had benefited from a rise in the capital value of her house occasioned by market movements during D's occupation.

74 Barber v Brown (1856) 140 E.R. 50, 64 (Creswell J.), approving Doe v Hare (1833) 149 E.R. 709, 709 (Bayley B.); both noted in Hampton v BHP Billiton Minerals Pty. Ltd. (No. 2) [2012] WASC 285, at [339] (Edelman J.). But cf. Bonnie Blair v Witmore [2015] HKDC 87, at [35], observing that nowadays there are often no fixed rules as to who out of a landlord and tenant should bear the cost of taxes and management fees and hence that this is “generally a matter of negotiation”.

75 [2018] UKSC 20, at [37].

76 Ibid., at [63], [70], [95].

77 [1979] 1 W.L.R. 285 (C.A.). See also Brynowen Estates Ltd. v Bourne (C.A., 21 October 1981); Shi v Jiangsu Native Produce Import & Export Corp [2009] EWCA Civ 1582, at [19], [24] (Dyson L.J.). Cf. Horsford v Bird [2006] UKPC 3, [2006] 1 E.G.L.R. 75, at [12]–[13].

78 Severn Trent Water Ltd. v Barnes [2004] EWCA Civ 570; Field Common Ltd. v Elmbridge B.C. [2008] EWHC 2079 (Ch), [2009] 1 P. & C.R. 1; Stadium Capital Holdings (No. 2) Ltd. v St. Marylebone Property Co. Plc. [2011] EWHC 2856 (Ch), [2012] 1 P. & C.R. 7.

79 [2018] UKSC 20, at [95]. See also Wrotham Park v Parkside [1974] 1 W.L.R. 798, 815.

80 Pell Frischmann Engineering Ltd. v Bow Valley Iran Ltd. [2009] UKPC 45, [2011] 1 W.L.R. 2370, at [49]. See also One Step v Morris-Garner [2018] UKSC 20, at [75] (Lord Reed).

81 [2018] UKSC 20, at [159]. See also Lunn Poly Ltd. v Liverpool & Lancashire Properties Ltd. [2006] EWCA Civ 430, [2006] 2 E.G.L.R. 29, at [17]–[37] (Neuberger L.J.); Pell Frischmann v Bow Valley [2009] UKPC 45, at [50]–[51].

82 Ibid., at [56].

83 [2011] EWHC 2856 (Ch).

84 Wrotham Park v Parkside [1974] 1 W.L.R. 798, 815–16; Pell Frischmann v Bow Valley [2009] UKPC 45, at [51]; Jones v Ruth [2011] EWCA Civ 804, [2012] 1 W.L.R. 1495, at [39]–[41]; Stadium Capital Holdings v St. Marylebone Property [2011] EWHC 2856 (Ch), at [69], [78]–[84].

85 [2008] EWHC 2079 (Ch), at [77]–[79].

86 Sinclair v Gavaghan [2007] EWHC 2256 (Ch), at [16]–[17]; Stadium Capital Holdings v St. Marylebone Property [2011] EWHC 2856 (Ch), at [69], [78]–[84]; Enfield L.B.C. v Outdoor Plus Ltd. [2012] EWCA Civ 608, [2012] 2 E.G.L.R. 105, at [51].

87 Enfield L.B.C. v Outdoor Plus [2012] EWCA Civ 608. Note, though, that “the premise of the hypothetical negotiation … breaks down in a situation where any reasonable person in the claimant's position would have been unwilling to grant a release”: One Step v Morris-Garner [2018] UKSC 20, at [75] (Lord Reed).

88 [2008] EWHC 2079 (Ch), at [77].

89 [2012] EWCA Civ 608, at [53].

90 [2017] EWHC 300 (Comm).

91 Ibid., at [232].

92 Ibid., at [233].

93 Ibid., at [199].

94 See also Whitwham v Westminster Brymbo Coal [1896] 2 Ch 538, 543–44 (Rigby L.J.) and discussion of this case in Peel, “Negotiating Damages after One Step”, 217–18. Cf. Edelman et al., McGregor on Damages, paras. 14-039–14-042, 39-049–39-050.

95 (1993) 66 P. & C.R. 195, 201.

96 Confirmed by Lord Clarke in Benedetti v Sawiris [2013] UKSC 50, [2014] A.C. 938, at [24].

97 Cf. Twin Benefits Ltd. v Barker [2017] EWHC 1412 (Ch), at [108]: “A restitutionary claim – a claim for unjust enrichment – is not a tortious claim.”

98 See text to note 77 above.

99 As noted in Graves v Graves [2007] EWCA Civ 660, at [47]; Esperance Cattle v Granite Hill [2014] WASC 279, at [455]; Bonnie Blair v Witmore [2015] HKDC 87, at [21]; Hampton v BHP Billiton [2012] WASC 285, at [358].

100 (1993) 25 H.L.R. 552, 554 (C.A.). See also Cavenagh Investment v Kaushnik Rajiv [2013] SGHC 45, at [52].

101 A further question is whether expenditure by D on improving C's land should be deducted from an award of gain-based damages? The reasons why this may be appropriate in some cases but not in others are well discussed by Kaye J. in Lollis v Loulatzis [2007] VSC 547, at [229].

102 Edelman, Gain-based Damages, 104–05; D. Friedmann, “Restitution for Wrongs: The Measure of Recovery” (2001) 79 Texas L.R. 1879, 1892–93, 1919. Contrast K. Oliphant (ed.), The Law of Tort, 2nd ed. (London 2007), para. 10.57, denying that any such claim should be allowed, even against a “wilful” trespasser, owing in part to the practical difficulties of calculating a fair apportionment of gains between the parties; we do not agree that rough justice is worse than no justice.

103 Gergen, M.P., “Causation in Disgorgement” (2012) 92 Boston University L.R. 827Google Scholar.

104 P. Birks, An Introduction to the Law of Restitution (Oxford 1985), 351.

105 G. Virgo, “Restitutionary Remedies for Wrongs: Causation and Remoteness” in C.E.F. Rickett (ed.), Justifying Private Law Remedies (Oxford 2008), 306.

106 Edelman, Gain-based Damages, 108–11.

107 But for a dissenting voice, see Gergen, “Causation in Disgorgement”, 855–58.

108 (1993) 66 P. & C.R. 195, 201–02.

109 Ibid., at 199.

110 [2012] WASC 285, at [333]. Edelman J. is now a Justice of the High Court of Australia.

111 Edelman, “The Meaning of Loss and Enrichment”, esp. 235–39; J. Edelman and E. Bant, Unjust Enrichment, 2nd ed. (Oxford 2016), ch 4.

112 [2014] A.C. 938, at [122].

113 [2009] EWCA Civ 1582, although the case had been pleaded as a claim to recover compensatory damages, rather than a claim for gain-based damages, leading Dyson L.J. to hold that D's “subjective devaluation” argument was irrelevant anyway. For further discussion of this topic, see Rotherham, C., “Subjective Valuation of Enrichment in Restitution for Wrongs” [2017] L.M.C.L.Q. 412Google Scholar.

114 (1988) 44 N.S.W.L.R. 432.

115 See the text to note 136 below.

116 Rotherham, “Subjective Valuation”, 430–34.

117 Galoo Ltd. (in liq.) v Bright Grahame Murray (a firm) [1994] 1 W.L.R. 1360, 1374–75 (C.A.) (Glidewell L.J.).

118 (1854) 156 E.R. 145, 151.

119 [1986] 2 E.G.L.R. 255 (Q.B.).

120 Ibid., at 258.

121 Cf. Reichman v Beveridge [2006] EWCA Civ 1659, [2007] 1 P. & C.R. 20.

122 (1842) 174 E.R. 605.

123 Ibid., at 605.

124 (1845) 115 E.R. 810. See also Smith v Eldridge (1854) 139 E.R. 412.

125 Ibid., at 812.

126 (1996) 72 P. & C.R. 9 (Ch).

127 Ibid., at 15.

128 Ibid.

129 Ibid.

130 (2000) 80 P. & C.R. 117 (C.A.). This case is discussed further in the text to note 142 below.

131 Ibid., at 123. See also Dream Property Sdn. Bhd. v Atlas Housing Sdn. Bhd. [2015] 2 M.L.J. 441 (Fed. Ct. of Malaysia), at [146]–[150].

132 [2013] UKSC 50, [2014] A.C. 938.

133 Ibid., at [15]–[16], [182]–[183].

134 Ibid., at [12]–[26]. See also Sempra Metals Ltd. v IRC [2007] UKHL 34, [2008] A.C. 561, at [119] (Lord Nicholls).

135 Ibid., at [122], stating that the value of benefits can only be assessed “objectively” and the reason why D's liability should be reduced is not that the benefit is worth less to her than it is to others but that making her pay this sum would unfairly deprive her of her freedom of choice. Discussion in C. Mitchell et al. (eds.), Goff & Jones: The Law of Unjust Enrichment, 9th ed. (London 2016), paras. 4.19–4.23.

136 [2014] A.C. 938, at [27]–[30], [120]–[121], [193]–[200].

137 Ibid., at [17] (Lord Clarke).

138 Docklock Ltd. v C Christo & Co. Ltd. [2021] EWHC 308 (Ch), at [130]. For discussion of the evidence typically used to establish this in trespass claims for compensatory damages, see the text to notes 52–67 above.

139 [2014] A.C. 938, at [17] (Lord Clarke). See also [22], [101]–[103], [107], [136], [184] and [186] where Lord Clarke, Lord Reed and Lord Neuberger all explained the award which had previously been made in Sempra in these terms.

140 Cf. Kowalishin v Roberts [2015] EWHC 1333 (Ch).

141 [2014] A.C. 938, at [17] (Lord Clarke), approving Mitchell et al., Goff & Jones, para. 4.10.

142 (2000) 80 P. & C.R. 117 (C.A.).

143 Ibid., at 122.

144 Ibid., at 123.

145 [2006] VSCA 6, [2006] V Conv R 54–713. See also De Medina v Polson (1815) 171 E.R. 157, 157 (where the parties’ lease agreement was void under the Statute of Frauds but its terms could nevertheless be consulted to determine the value of D's occupation).

146 Ibid., at [22].

147 Ibid., at [49].

148 Ibid., at [50].

149 [2018] UKSC 39, [2019] A.C. 929.

150 Ibid. at [68], following Investment Trust Companies v HMRC [2017] UKSC 29, [2018] A.C. 275, at [42].

151 Ibid., at [71]–[74].

152 [2020] EWHC 1118 (Comm), [2020] P.T.S.R. 1913, at [437]; not considered on appeal: [2021] EWCA Civ 1053.

153 Friedmann, “Restitution for Wrongs”, 1880.

154 Ibid., at 1882.