Commercial Litigation: Damages and Other Remedies for Breach of Contract

How aware are you of the full implications of these ground-breaking cases?

• Voaden v Champion (2002)
• SAM Business Systems v Hedley(2003)
• Days Medical Aids v Pihsiang Machinery Manufacturing Co (2004)

What is new?

Time-honoured principles, long regarded as rules, eg. ‘new for old’ compensation, have been radically altered. Courts have moved from applying broad principles to making judgments based on the precise facts in front of them – known as the ‘fact-specific’ approach. In some cases the same set of facts can now be argued either on the basis of contract or of tort – which way you go is a crucial question of tactics

This valuable report has been completely updated since it first appeared in 2002 (Damages and Other Remedies for Breach of Commercial Contract): it includes accounts of all the most recent important cases and highlights significant changes in the way that the courts now assess damages.

It sets out a systematic approach for assessing the remedies available for various types of breach of contract, what the remedies mean in terms of compensation and how the compensation is calculated. It also examines recent case law as well as classic earlier cases and explores the issues involved; in particular the defences. The report provides numerous examples of effective drafting of terms controlling and limiting remedies – as well as illustrating the type of poor drafting to be avoided.

Plus it also includes helpful tables, figures and calculations and a search analysis of the mathematical and financial implications of awarded damages.

The Report benefits
This will:
1 Help you reduce your exposure to risk and liability in your commercial contracts
2 Highlight the different remedies available for breach of contract so that when one arises your know the your options
3 Ensure that you know how to measure damages so that in the event of a claim you can make a fair assessment for claims against you and claims you make yourself

Who should buy this Report

• In-house counsel
• Heads of legal departments
• Contracts managers and directors
• Commercial managers and directors
• Private practice lawyers
• Contract specialists and advisors

1. The starting point for calculations

• A comparison of different remedies available for breach of contract
• Selecting the appropriate remedy
• The remedy of Quantum Meruit
• Damages versus debt
• Contract or tort?
• Damages: the basic principles of assessment
• The rules of remoteness
• Remoteness of damages
• Putting together several different heads of claim
• Damages for mental distress
• Interest and financing charges
• What is ‘consequential loss, or damage’; how does it relate to the principles already set out?

2. The measurement of damages

• Putting figures to the claim
• The rule against double counting
• Taxation and ‘double counting’
• Double counting and the recouping of loss
• The rules about mitigation of loss

3. Special cases involving damages

• Damages for loss of a chance
• Chances of earning or of profitability
• Contributory negligence and the measurement of damages
• Drafting terms to control remedies
• The Unfair Contract Terms Act 1977
• Liquidated damages
• Clauses about currency and interest
• The breach date rule
• Summarising the principles applicable to a claim for damages

4. Other remedies for breach of contract

• The remedies
• The declaratory judgment
• Retention of a deposit
• Rescission
• Specific performance and specific delivery
• Injunctions
• The remedy of rectification
• Indemnities: what is their purpose?

Appendices

• List of cases cited
• List of statutes and other enactments mentioned in this report

5. Appendix 1 – The Millennium Dome case

6. Appendix 2 – List of cases

Dr Robert Ribeiro, Barrister, has been an independent lawyer, public speaker and business consultant since 1989. His work includes the drafting and negotiations of commercial contracts and advising upon legal problems arising in commercial dealings. His work also includes the provision of public seminars and in-house training for commercial clients. He is author of the book Engineering Contracts – A Management Guide and the report Drafting Commercial Contracts.

Commercial Risk Management

Commercial Contracts - Drafting Techniques and Precedents

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The Commercial Manager

This course qualifies for the following CPD programmes:

• Solicitors Regulation Authority: 3.00 hours

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