i OVERVIEW

Under English law, the basic principle for breach of contract is that a party is entitled to be put in the same position as they would have been had they not sustained the wrong.2 As the name suggests, compensatory damages are intended to compensate a claimant for losses suffered as a result of the other party's (wrongful) conduct.

While the concept of compensatory damages is common to several jurisdictions, a distinctive feature of English law is the emphasis on mitigation of loss. The claimant is expected to take all reasonable steps to minimise its loss resulting from the defendant's breach of its obligations. Loss that could have been avoided through reasonable action or inaction by the claimant will not be recoverable. By corollary, if the injured party takes reasonable steps to minimise the loss incurred, the cost of these steps is recoverable and the damages owed by the defendant are reduced by the amount of reduction of loss.3

There are three main categories of recoverable damages under English law: (1) expectation damages; (2) performance damages; and (3) reliance or 'wasted expenditures' damages. Other categories of damages include moral damages, punitive or exemplary damages and non-monetary damages such as specific performance,4 but this chapter's focus is on compensatory damages.

Expectation damages are awarded to put the claimant in the position it would have been in but for the breach. The ability of a claimant to recover lost profits will depend on the subject of the breach.5 There two types of 'expectation damages' – normal or direct damages (also known as general damages), and consequential damages (also known as special damages).6 Normal or general damages follow as a natural and probable consequence of a breach,7 whereas consequential damages are those that do not flow directly from the breach and are particular to the injured party and can therefore be difficult to calculate in financial terms.8

Performance damages compensate the cost of curing the defective performance9 and 'wasted expenditures' or 'reliance damages' compensate the losses or expenditures incurred by the claimant in reliance on the contract.10 These damages are aimed at putting the claimant in as good a position as he or she was prior to the promise.11

II QUANTIFICATION OF FINANCIAL LOSS

In English law, the purpose of an award of damages for breach of contract is to compensate the injured party for loss, rather than to punish the wrongdoer. The general rule is that damages should (so far as a monetary award can) place the claimant in the same position as if the contract had been performed.12 Therefore, damages are usually measured by the difference in value between the contemplated and actual performance of the contract.13

To establish entitlement to damages, the claimant is also required to show that adequate steps have been taken to mitigate the damage resulting from the defendant's actions. Failure to take mitigating steps will likely result in the claimant's entitlement to damages being reduced.

In addition to mitigating factors, damages awarded under English law are also influenced by methods of calculation, application discount and interest rates and income tax or capital gains tax.

i Evidence

If a claimant has suffered a loss,14 there are four key elements that are relevant to establishing a party's entitlement to damages and determining the amount of damages to be awarded: (1) the existence of a wrong; (2) reasonable foreseeability; (3) failure to mitigate the impact of the breach; and (4) chain of causation.

The first and most basic requirement is that in order to establish an entitlement to damages one must prove the existence of a 'wrong'15 – that is, a breach of contract. Second, a claimant must establish that the damage is not too remote and that the losses were reasonably foreseeable at the time the parties entered into the contract.16 The test of reasonable foreseeability was first outlined in Hadley v. Baxendale as:

Where two parties have made a contract, which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it.17

For loss to have been foreseen, it must have been contemplated by the parties and 'not unlikely'18 at the date of entering into the contract. Loss is said to have been in contemplation of the parties (and therefore assumed)19 if, objectively assessed, it could be said to occur in the ordinary course of events, or, if subjectively assessed, there are special circumstances or knowledge attributable to the parties.20

Third, any damages awarded are subject to deductions for any failure to mitigate (or contributory negligence in the case of breaches of duty of care). The defendant carries the burden of proof in relation to establishing the claimant's actions (or lack thereof) to mitigate damage as a result of the defendant's breach.21 Provided the steps taken by the claimant to minimise the loss incurred are reasonable, the cost of such steps is recoverable even if the steps taken have increased the loss.22 However, any profit accrued as a result of the claimant's mitigating actions is also credited to the defendant if causation is established, with the latter having the burden of proving the existence and amount of such profit.23

Fourth, any damages awarded are also subject to any breaks in the chain of causation.24 Irrespective of factual causation, English law can treat some losses as not having been legally caused by the breach, on the basis that it is not fair to hold the defendant responsible for them due to a 'break in the chain' or novus actus interveniens.25 If the breach of contract was the 'effective' or 'dominant' cause of the loss, damages may be recoverable even if the breach was not the sole cause of the loss.26 Where there are competing causes, a balance of probabilities test applies.27

ii Date of assessment

Under English law, damages are normally assessed at the date of breach of contract unless to do so would not be in the interests of justice.28

However, the date of breach may not be appropriate as the starting point for calculation of damages. For example, a claimant's steps to mitigate the loss may impact the evaluation of the damages. Similarly, where the claimant has not in fact suffered any loss at the date that the actual breach occurred, but only began to suffer loss subsequently, the latter date may be the more appropriate starting point for calculation.

iii Financial projections

Under English law, a claimant must prove the fact of loss and the amount of the loss on the balance of probabilities, that is, 'If the evidence shows a balance in favour of it having happened, then it is proved that it did in fact happen.'29 However, different principles apply for future or projected loss.

Where it is difficult to prove the amount of loss with certainty, the wrongdoer should not be relieved of his or her responsibility to pay.30 Damages can be recovered for 'loss of a chance'. However, this is an inherently uncertain head of loss, and can raise difficult issues of causation and quantification.31

The doctrine of 'loss of chance' was introduced in English law by the decision in Chaplin v. Hicks,32 but has since evolved considerably. In Mallett v. McMonagle, Lord Diplock opined:

Anything that is more probably than not [the court] treats as certain. But in assessing damages which depend on its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the changes that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages it awards.33

Establishing a loss of chance requires that there be both a real and a substantial chance – a chance that is negligible is not likely to support recovery of projected damages.34 Similarly, a chance to which only a speculative money value can be assigned is unlikely to succeed.35 However, where the realisation of a chance appears to be virtually certain, the court will consider it appropriate to award what would have been awarded against the defendant originally.36

iv Liquidated damages and penalties

Parties to a contract can agree between them the amount of damages payable for any breaches (stipulating different sums for different breaches).37 The long-standing common law rule is that a term in a contract, which constitutes a penalty, is unenforceable. Therefore, the court will have to determine whether the payment stipulated is a liquidated damage or a penalty. A penalty is a payment of money stipulated as in terrorem of the offending party and the liquidated damages are a genuine pre-estimate of damage.38 The Supreme Court in the 2016 conjoined appeals in Cavendish Square Holdings v. Makdessi and ParkingEye Ltd v. Beavis39 revisited and reinstated the above law on penalties and liquidated damages.

The Court held that the penalties doctrine is applicable only when there is a breach of contract and no matter how extreme a party is penalised, it will amount to a penalty only when it is a result of breach. The courts have no power to regulate parties' primary regulations and the rule is applicable only in the case of secondary obligations. In this judgment, Lords Neuberger and Sumption stated that 'the true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation'.40 The Court further observed that whether a clause operates as a primary obligation or secondary obligation is a question of substance and not form.41

v Discount rates 

The calculation of compensatory damages often involves the determination of future losses or 'loss of chance'. When calculating future losses, the application of an appropriate discount rate is required to estimate the expected rate of return had the loss not occurred.

In a consultation by the Ministry of Justice in relation to the Damages Act 1996, the overriding aim behind discount rates was described as to set the rate as accurately as possible so that under-compensation or over-compensation by reason of the accelerated payment of the future losses is avoided as far as possible.42

While this principle was articulated in the specific context of personal injury claims, the general presumption is helpful when considering the general application of discount rates to the calculation of compensatory damages. In the discounted cash flow analysis (discussed further below), if a breach of contract results in loss of profits over time, a discount rate is applied to estimate the current value of the cash flow. The discount rate in such instances would typically depend on the asset being valued. For example, while valuing equity, the relevant discount rate would be that most appropriately reflecting the cost of the equity. Discount rates are influenced by a variety of factors including political changes, future inflation, currency devaluation and fluctuating interest rates.

Experts use a variety of discount rate calculation methods when valuing assets including, for example, the capital asset pricing model (which considers a stock's rate of return, the market's rate of return and a risk-free rate) and the weighted average cost of capital (which is usually used to assess a company's value as a whole by estimating the weighted average of new debt and equity needed to operate the company).

vi Currency conversion

The currency contemplated by the contract generally determines the currency for damages to be awarded.43 Where the contract does not provide for a specific currency for the awarding of damages, the damages will be awarded in the currency in which the claimant suffered the loss.44

In Miliangos Respondent v. George Frank (Textiles) Ltd,45 the House of Lords found that the English courts had the authority to give judgment in foreign currency where under a contract, payment obligations are in a foreign currency and the proper law is that of the foreign country, with payment to be made outside the United Kingdom.46 The courts will take into account commercial considerations and give judgments in foreign currency or its sterling equivalent at the date when the court authorises the claimant to enforce the judgment.47 This protects the claimants against any decrease in the external value of sterling in relation to their own currency, save for in instances where the value of sterling is rising.48

The courts have also considered the issue of whether a court has the power to make a cost award to compensate for any exchange rate losses incurred in paying costs. In Elkamet Kunststofftechnik GmbH v. Saint-Gobain Glass France SA,49 the court held that 'order for costs is designed to compensate the successful party for its expenditure so that exchange rate losses can be compensated in the same way as it is entitled to be compensated by way of interest for being kept out of the money'.50

vii Interest on damages

The court has the authority to grant award interest on damages for any period between the date when the cause of action arose and the date of judgment.51 If the claimant caused unwarrantable delay, interest on damages for such period will be reduced accordingly. A damages claim (including a claim for interest) should therefore be clearly particularised and supported by the necessary written and oral evidence required to prove the claimant's case.

The court has the discretion to award interest at different rates in respect of different periods; in contractual claims, the interest rate should reflect the current commercial rate. The Commercial Court and the Court of Appeal generally award 1 per cent above the base rate. However, if such calculation would put either party in an unfair position (smaller business pays higher interest rate, etc.), the court can adopt an appropriate interest rate to suit the parties.52

Where the damages are calculated in a foreign currency, the commercial borrowing rate in the foreign currency in the relevant country is considered as the relevant interest rate.53

viii Costs

As a general principle, legal costs incurred as a result of breach of contract can be recovered as damages, where they were incurred in actions against third parties or previous actions against the defendant. The costs of the dispute over the breach of contract itself, although caused by the breach usually cannot be claimed as damages as they fall within the exclusive jurisdiction of the courts' costs regime.54

As a result of the mitigation principle, legal costs recoverable as contract damages are assessed in the same way as 'indemnity basis' of costs. That is, 'unreasonable' costs are not recoverable under common law principles, nor is proportionality always taken into account.55

ix Tax 

There are two types of taxation that may apply in relation to an award for damages: (1) income tax; and (2) capital gains tax.

Prior to 1956, the English courts did not reduce awards of damages to account for income tax. However, in British Transport Commission v. Gourley, the House of Lords ruled that when calculating damages for personal injuries resulting from a tort, the court will take into account the tax liability in respect of his loss of earnings (both past and prospective).56 This rule has been modified over the years in instances where the damages sought would have been taxed.57

Capital gains tax differs from income tax in that it does not cause damages to be reduced. However, the impact of capital gains tax would need to be considered on a case-by-case basis where the application of capital gains tax affects the value of the asset that is said to have suffered the loss.

III EXPERT EVIDENCE

The Civil Procedural Rules 1998 as amended (the Rules) and accompanying Practice Directions deal extensively with the appointment of experts and assessors. At a primary level, the aim of these Rules and Practice Directions is to regulate the use of expert evidence in civil proceedings, in particular to address concerns relating to independence of experts, excessive expenditure and increasing complexity.

i The role of expert evidence in calculation of damages

Experts can play an important role in assessing damages, particularly where damages are influenced by a range of factors occurring both at and after the date of breach or the application of rates of interest are in dispute.

For example, in Vasiliou v. Hajigeorgiou58 the trial judge found the claimant to be an accomplished restaurateur whose restaurant would have been successful and assessed his loss of profits on that basis. The expected turnover, together with gross and net profit, was calculated with expert evidence and the ultimate decision not to apply a discount was upheld by the Court of Appeal.59

ii The court's role excluding and managing expert evidence

English law provides that expert evidence shall be restricted to that which is reasonably required to resolve the proceedings. The court may therefore control the evidence by giving directions in relation to the issues on which it requires evidence, the nature of the evidence required and the way in which the evidence is to be placed before the court.60 For instance, in Dudding v. Royal Bank of Scotland Plc,61the court held that the claimants were entitled to rely on the expert evidence concerning the sale of derivatives by the defendant banks as the evidence was reasonably required in order to resolve the issues.

Courts are required to seek to restrict the excessive or inappropriate use of expert evidence. Under English law, parties are required to seek the court's permission prior to filing an expert report, and their application for permission must include an estimate of the costs of the proposed expert evidence. In British Airways plc v. Spencer, the court held that when assessing whether to admit expert evidence, the court will consider whether the evidence is necessary (i.e., whether a decision could be made without it) or if it is of marginal relevance. The courts will strike a balance if it is of marginal relevance by taking into account the value of the claim, the effect of a judgment on the parties, how the commissioning of the evidence would be paid for, and any delay likely to be entailed by the production of such evidence.62

Permission given by the court is limited to the expert or field specifically identified in the parties' application, and the court can limit the amount of the expert's fees and expenses that can be recovered from the other party.63 In Darby Properties Ltd and Darby Investments Ltd v. Lloyds Bank plc,64 the Master reviewed several authorities on expert evidence in interest rate swap cases together with case law. On finding that there was not a consistent approach, he concluded that while a judge would benefit from evidence explaining the specific financial products, this could be done by way of factual evidence and therefore expert evidence was not required.65

Judges are required to give reasons for preferring the evidence of one expert over another and failure to provide such reasoning may be considered valid grounds for appeal.66

iii Independence of experts

English law provides that experts must provide opinions that are independent and uninfluenced by the pressures of litigation. Experts are required to assist the court by providing objective, unbiased opinions on matters within their expertise by considering all material facts (including those that might detract from their opinions) and should avoid assuming the role of an advocate. If a question or issue falls outside their expertise or they are unable to reach a definite opinion, they should make this clear to the court and any change of view should be communicated to all the parties without any delay (and when appropriate, to the court).67 In the case of Arroyo and others v. Equion Energia Ltd (formerly known as BP Exploration Co (Colombia) Ltd),68 the court held that the 'deliberate and serious breach' of the expert was highly relevant in the court's assessment of order of costs paid on an indemnity basis. Similarly, in the case of Igloo Regeneration (General Partner) Ltd v. Powell Williams Partnership,69 a partial indemnity costs award was made against the claimant related to the conduct of its inexperienced expert engineer who made concessions in his joint statement, which undermined the claimant's case on liability.

The courts have reiterated the importance of experts' independence and impartiality including in recent cases including Watts v. The Secretary of the State for Health and Bank of Ireland v. Watts Group.70 In the former, the court went so far as to criticise the expert for choosing to 'ignore or play down matters that were inconvenient to her assessment of the case'.71

iv Novel science and methods 

Expert evidence is typically helpful in the calculation of damages under two methods: (1) the discounted cash flow method; and (2) comparable transactions and comparable trading multiples method.

The discounted cash flow method projects future cash flows and uses a discount rate to estimate the current value of the projected cash flows. This method is best used in instances where the parties are trying to calculate the earning potential of an asset in the future and require expert evidence in the accurate forecasting of such cash flows. Among other things, expert evidence is used to determine the time period in the future that should be used to assess the cash flows, and the appropriate discount rates to be applied in the calculation of the asset value. As explained above, discount rates such as capital asset pricing model and weighted average cost of capital are two such methods.

Comparable transactions or comparable trading multiples primarily use publicly reported transactions and share prices to arrive at an estimated value of the asset in question, provided that sufficiently comparable transactions and prices exist in the market. Expert evidence can be crucial in determining the comparability of prices in the public domain, and the relevance of the proposed comparisons.

The EU General Data Protection Regulation ((EU) 2016/679) (GDPR) is in effect as of 25 May 2018. The Regulation is aimed at addressing the collection of data and the way it is processed and used by both individuals and organisations, including in the communication and sharing of information. The full impact of the GDPR on evidence in litigation or arbitration remains to be seen.

IV RECENT CASE LAW

i Axa Insurance UK Plc v. Financial Claims Solutions Ltd [2018] EWCA Civ 1330

The defendants committed serious frauds by issuing two sets of fictitious personal injury claims based on fake documents to the insurance companies. The claimant insurance company conducted an investigation, discovered the claimant's fraudulent conduct, and brought claims against the defendants seeking both compensatory and exemplary damages. The lower court awarded compensatory damages, but rejected their claim for exemplary damages stating that the fraud was discovered before the defendants made any profits and, therefore, the second category of Rookes v. Barnard72 did not apply.

On appeal, the court held that the lower court wrongly applied the Rookes case. The court explained that the second category of Rookes applies to cases where 'the defendant's conduct has been calculated to make a profit for himself which may well exceed the compensation payable to the claimant'.73 In the present case, the compensatory damages granted were limited to the cost of investigation, which was a much lesser sum compared to the profit the defendants would have made had the fraud been successfully executed. The court observed that exemplary damages are 'available for the case where compensatory damages are inadequate to remove the wrongful gain achieved by the tort'74 and they are punitive in nature.75 The court further observed, 'the second category requires the Court to analyse the position prospectively when the tort is committed, at which time the tortfeasor may or may not ultimately achieve the profit it seeks to achieve'.76 Given the seriousness of the claim and the need to deter and punish the outrageous conduct and abusive behaviour, the court awarded exemplary damages.77

ii One Step (Support) Ltd v. Morris-Garner [2018] UKSC 20

The appellant employees acted in breach of their restrictive covenants in their employment contracts. The employer claimant chose to claim 'negotiation damages' under the principles of Wrotham Park Estate Co Ltd v. Parkside Homes Ltd.78 One of the reasons given by the appellant for seeking negotiation damages was the difficulty in establishing the loss the business suffered as a result of the employees' conduct. The lower courts applied the Wrotham Park principle and granted the employer negotiation damages; the defendants appealed. Allowing the appeal, the court held that the lower court wrongly applied the Wrotham Park principle, and provided clarification on the correct application of the Wrotham Park principle and granting 'negotiation damages'.

The court observed that the hypothetical fees that the parties would have agreed for release of contractual damages for breach of contract under the Wrotham Park principle was not compensatory damages. It clarified that common law damages for breach of contract is not a matter of discretion for the judge; it is claimed as of right, and awarded on the basis of legal principles.79 The courts are not justified in granting negotiation damages just because it was difficult to quantify the financial loss and negotiation damages was considered to be a just response. Accepting that financial loss in the present case scenario was difficult to quantify, the court held that it was still a 'familiar type of loss for which damages were frequently awarded and could be quantified in a conventional manner. Therefore, the hypothetical release fee is not itself the measure of the claimant's loss in this case.80


Footnotes

1 Clare Connellan is a partner at White & Case LLP. The author thanks Pavini Emiko Singh and Theresa Puthumana, associates at White & Case LLP, for their contributions to this chapter.

2 H. McGregor, McGregor on Damages (20th ed. Sweet & Maxwell, London 2017), Section 2-002, citing Livingstone v. Rawyards Coal Co [1880] 5 App Cas. 25 at 39.

3 H. McGregor, McGregor on Damages (20th ed. Sweet & Maxwell, London 2017), Section 9-002–9-006.

4 Chitty on Contracts, 32nd ed., 2015, Chapter 26, Sections 26-022 – 26-030, 26-044–26-045, and Chapter 27, 27-001–27-004.

5 H. McGregor, McGregor on Damages (20th ed. Sweet & Maxwell, London 2017), Sections 4-0018–19. See also the series of cases concerned with breach of restrictive covenants and damages to account for profits, e.g., Wrotham Park Estate Co. v. Parkside Homes Ltd [1974] 1 WLR 798, giving rise to Wrotham Park damages.

6 H. McGregor, McGregor on Damages (20th ed. Sweet & Maxwell, London 2017), Sections 3-001–3-016.

7 For the position under English law, see Halsbury's Laws of England, Section 317, citing Ratcliff v. Evans [1892] 2 QB 524 at 528, CA, per Bowen LJ.

8 For the position under English law, see Halsbury's Laws of England, Volume 29, Section 317 and H. McGregor, McGregor on Damages (20th ed. Sweet & Maxwell, London 2017), Section 3-008.

9 J. Chitty, H. Beale, Chitty on Contracts (32nd ed. Sweet & Maxwell, London 2015), Sections 26-020–26-021.

10 Halsbury's Laws of England, Volume 29, Section 503.

11 J. Chitty, H. Beale, Chitty on Contracts (32nd ed. Sweet & Maxwell, London 2015), Sections 26-020–26-021.

12 Robinson v. Harman (1848) 1 Ex 850.

13 H. Wöss and others, Damages in International Arbitration under Complex Long-Term Contracts (Oxford University Press, Oxford 2014) para. 4.38. See, e.g., Durham Tees Valley Airport Ltd v. Bmibaby Ltd [2010] EWCA Civ 485.

14 Where a loss has been suffered by another party, this can give rise to the so-called 'black hole' problem, where the damages risk falling into a black hole. The English courts have indicated a willingness to find a solution in such circumstances, where appropriate. See, e.g., McAlpine v. Panatown, [2001] 1 AC 518.

15 H. McGregor, McGregor on Damages (20th ed. Sweet & Maxwell, London 2017), Section 1-001.

16 Wagon Mound (No. 1) [1961] AC 388; J. Chitty, H. Beale, Chitty on Contracts (32nd ed. Sweet & Maxwell, London 2015), Sections 26-111 and 26-116. The notion of foreseeability is further analysed below.

17 Hadley v. Baxendale (1854) 9 Exch. 341.

18 Hadley v. Baxendale (1854) 9 Exch. 341.; [H. Parsons (Livestock) Ltd v. Uttley Ingham & Co Ltd [1977] EWCA Civ 13.

19 Transfield Shipping Inc v. Mercator Shipping Inc (The Achilleas) [2008] UKHL 48; Supershield Ltd v. Siemens Building Technologies FE Ltd [2010] EWCA Civ 7; Rubenstein v. HSBC Bank plc [2012] EWCA Civ 1184.

20 Victoria Laundry (Windsor) Ltd v. Newman Industries Ltd [1949] 2 KB 528.

21 Lombard North Central plc v. Automobile World (UK) Ltd [2010] EWCA Civ 20. A claimant should nevertheless consider whether to take steps to show how it has mitigated its loss, as failure to do so can be risky. Bulkhaul Ltd v. Rhodia Organique Fine Ltd [2008] EWCA Civ 1452.

22 Lagden v. O'Connor [2004] 1 AC 1067, per Lord Scott, at para. 78.

23 Thai Airways International Public Co Ltd v. KI Holdings Co Ltd (formerly Koito Industries Ltd) [2015] EWHC 1250 (Comm). See also Globalia Business Travel SAU (formerly TravelPlan S.A.U) of Spain v. Fulton Shipping Inc of Panama [2017] UKSC 43, in which the Supreme Court confirmed that the issue turns on causation: where the claimant has obtained a benefit following a breach of contract and this benefit was caused either by the breach or by the claimant's act of mitigation, the recoverable loss will be reduced by the benefit.

24 C. T. Salomon, 'Chapter 10: Damages in International Arbitration', in J. Fellas and J. H. Carter (eds), International Commercial Arbitration in New York (2nd ed. Oxford University Press, Oxford 2016), p. 353.

25 See, e.g., Corr v. IBC Vehicles Ltd [2008] 1 AC 884, per Lord Bingham at para. 15: 'The rationale of the principle that a novus actus interveniens breaks the chain of causation is fairness.'

26 Galoo v. Bright Grahame Murray [1994] 1 W.L.R. 1360, at 1374–1375. See also J. Chitty, H. Beale, Chitty on Contracts (32nd ed. Sweet & Maxwell, London 2015), Section 26-068: 'If a breach of contract is one of two causes, both co-operating and both of equal efficacy in causing loss to the claimant… the contract-breaker is liable so long as his breach was 'an' effective cause of his loss: the court need not choose which cause was the more effective.'

27 Nulty and others v. Milton Keynes Borough Council [2013] EWCA Civ 15, at para. 35: '[T]he court must be satisfied on rational and objective grounds that the case for believing that the suggested means of causation occurred is stronger than the case for not so believing.'

28 Johnson v. Agnew [1980] AC 367, per Lord Wilberforce at 401.

29 Davies v. Taylor [1974] AC 207 at 213.

30 H. McGregor, McGregor on Damages (20th ed. Sweet & Maxwell, London 2017), Sections 10-001–10-002.

31 H. McGregor, McGregor on Damages (20th ed. Sweet & Maxwell, London 2017), Sections 10-005–10-006.

32 [1911] 2 K.B. 786.

33 Mallett v. McMonagle [1970] A.C. 166 at 176.

34 H. McGregor, McGregor on Damages (20th ed. Sweet & Maxwell, London 2017), Section 10-051.

35 Halifax Building Society v. Urquart-Dykes and Lord [1997] R.P.C. 55 at 87, line 18.

36 H. McGregor, McGregor on Damages (20th ed. Sweet & Maxwell, London 2017), Section 10-094, referring to inter alia, McGrath v. Kiely and Powell [1965] I.R. 497 and White v. Jones, [1995] 2 A.C. 207 CA.

37 H. McGregor, McGregor on Damages (20th ed. Sweet & Maxwell, London 2017), Section 16-001.

38 Dunlop Pneumatic Tyre Co Ltd v. New Garage and Motor Co Ltd [1915] AC 79.

39 [2016] A.C. 1172.

40 [2016] A.C. 1172 at [32].

41 H. McGregor, McGregor on Damages (20th ed. Sweet & Maxwell, London 2017), Section 16-014.

42 Ministry of Justice Consultation Paper CP 3/2013, 'Damages Act 1996: The Discount Rate', at p. 4.

43 Federal Commerce and Navigation Co Ltd v. Tradax Export SA [1977] 1 QB 324; J. Chitty, H. Beale, Chitty on Contracts (32nd ed. Sweet & Maxwell, London 2015), Section 30-378.

44 Attorney General of Ghana v. Texaco Overseas Tankships Ltd (The Texaco Melbourne) [1994] 1 Lloyd's Rep. 473 (HL). See also, Milan Nigeria Ltd v. Angeliki B Maritime Company [2011] EWHC 892 (Comm) para 57.

45 [1975] 3 W.L.R. 758.

46 Miliangos v. George Frank (Textiles) (No. 2) [1977] Q.B. 489, 497; Helmsing Schiffahrts v. Malta Drydocks Corp [1977] 2 Lloyd's Rep. 444, 449.

47 H. McGregor, McGregor on Damages (20th ed. Sweet & Maxwell, London 2017), Section 20-029.

48 H. McGregor, McGregor on Damages (20th ed. Sweet & Maxwell, London 2017), Section 20-053.

49 [2016] EWHC 3421 (Pat).

50 H. McGregor, McGregor on Damages (20th ed. Sweet & Maxwell, London 2017), Section 20-054.

51 Section 35A of the Senior Courts Act 1981.

52 J. Chitty, H. Beale, Chitty on Contracts (32nd ed. Sweet & Maxwell, London 2015), Section 26-240.

53 Miliangos v. George Frank (Textiles) (No. 2) [1977] Q.B. 489, 497; Helmsing Schiffahrts v. Malta Drydocks Corp [1977] 2 Lloyd's Rep. 444, 449.

54 Hutchinson v. Harris [1978] 10 BLR 19.

55 National Westminster Bank plc v. Rabobank Nederland [2007] EWHC 1742 (Comm). See also, Hawksford Trustees Jersey Ltd v. Halliwells LLP (In liquidation) [2015] EWHC 2996 (Ch).

56 H. McGregor, McGregor on Damages (20th ed. Sweet & Maxwell, London 2017), Section 18-002, citing British Transport Commission v. Gourley [1956] A.C. 185.

57 H. McGregor, McGregor on Damages (20th ed. Sweet & Maxwell, London 2017), Section 18-005. See e.g., BskyB Ltd v. HP Enterprise Services UK Ltd, [2010] EWHC 862 (TCC) at [77], and Taylor v. O'Connor [1971] A.C. 115.

58 [2010] EWCA Civ 1475 CA.

59 H. McGregor, McGregor on Damages (20th ed. Sweet & Maxwell, London 2017), Section 10-038; Vasiliou v. Hajigeorgiou [2010] EWCA Civ 1475 CA, para. 15.

60 CPR 35.1 and White Book commentary para. 35.1.1 at page 1127.

61 [2017] EWHC 2207 (Ch).

62 [2015] EWHC 2477 (Ch).

63 CPR 35.4.

64 [2016] EWHC 2494 (Ch), See also, Barings Plc (In Liquidation) v. Coopers & Lybrand (No. 2) [2001] Lloyd's Rep. Bank. 85.

65 See also White Book commentary para. 35.1.1 at page 1127.

66 Flannery and another v. Halifax Estate Agencies Ltd [2000] 1 W.L.R. 377.

67 CPR 35 paras. 2.1-2.5 and White Book commentary para. 35.18 at page 1160.

68 [2016] EWHC 3348 (TCC).

69 [2013] EWHC 1718 (TCC).

70 Bank of Ireland and another v. Watts Group Plc [2017] EWHC 1667 (TCC).

71 Watts v. The Secretary of State for Health [2016] EWHC 2835 (QB) at para. 64.

72 (No. 1) [1964] A.C. 1129, at para. 1226: 'Cases in the second category are those in which the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff.'

73 Axa Insurance UK Plc v. Financial Claims Solutions Ltd [2018] EWCA Civ 1330, at paras. 15 and 25.

74 Axa Insurance UK Plc v. Financial Claims Solutions Ltd [2018] EWCA Civ 1330, at para. 19.

75 Axa Insurance UK Plc v. Financial Claims Solutions Ltd [2018] EWCA Civ 1330, paras 35; Ramzan v. Brookwide Ltd [2011] EWCA Civ 985, [2012] 1 All E.R. 903. Exemplary damages should be principled and proportionate, and the principled basis is to make a punitive award.

76 Axa Insurance UK Plc v. Financial Claims Solutions Ltd [2018] EWCA Civ 1330, at para. 27.

77 Axa Insurance UK Plc v. Financial Claims Solutions Ltd [2018] EWCA Civ 1330, at paras. 23 and 34: the possibility of criminal or contempt proceedings against the defendants is irrelevant to the question of whether or not exemplary damages is to be awarded.

78 [1974] 1 W.L.R. 798.

79 One Step (Support) Ltd v. Morris-Garner [2018] UKSC 20, at para. 95: 'negotiating damages can be awarded for breach of contract where the loss suffered by the claimant is appropriately measured by reference to the economic value of the right which has been breached, considered as an asset…. The rationale is that the claimant has in substance been deprived of a valuable asset, and his loss can therefore be measured by determining the economic value of the right in question, considered as an asset. The defendant has taken something for nothing, for which the claimant was entitled to require payment.'

80 One Step (Support) Ltd v. Morris-Garner [2018] UKSC 20.