It’s all Greek to me! 

There’s not much point winning a claim in Court if you don’t end up with the award you’re expecting. They call that a Pyrrhic victory after the Ancient Greek King Pyrrhus, who wasted so many resources and human lives in defeating the Roman Army that he would have been better off conceding defeat! 

So how do you know what to expect? Calculating awards of money is not an exact science and in many cases, it’s almost impossible to predict how much a Judge or Magistrate is going to think your claim is worth. 

We at Havilah Legal can take some of the mystery out of making these calculations. 

In commercial cases, the awards that may be made in different circumstances can be split up into five broad classes (ignoring awards made under the laws of Parliament, known as statutes): 

0. Restoration Damages- These damages are generally awarded where a contract for services has been breached. We make these sorts of claims most commonly in building and construction matters where building services did not comply with the specifications or meet the standards required under the contract. These awards are based on the amount that it might reasonably be expected to cost to make the defective works comply with the contract. Expert evidence is often needed to help the Court calculate these awards.
0. Loss-of-Value Damages - These damages are generally awarded where a breach of contract or legal duty has caused a reduction in the value of an asset or commodity. Examples include contamination of land, defectively built investment properties and defectively manufactured goods. The award is based on the difference between the market value of the defective or damaged thing as it is, and as it would have been, but for the breach. Again, the Court may need the assistance of an expert (e.g. a valuer) when assessing these awards.
0. Damages for Economic Loss - These are most commonly awarded in property damage and breach of contract cases but there are some examples outside these categories. These awards are designed to compensate claimants for the loss of capacity to earn money or make a profit because of such things as defects or damage to the means of production, materials used in the process of manufacture, or retail items.
0. Disgorgement/Restitutionary awards - These are generally awarded in cases involving trespass to land or goods, breaches of patent or copyright, breaching negative covenants (binding promises not to use land or confidential information in a particular way), or taking the benefit of services without any legal obligation to pay for it. There are many other examples. In these cases, the person whose rights have been interfered with doesn’t suffer any loss as a result. But the person who has used that person’s property without permission has thereby increased their wealth. In other words, they have been “unjustly enriched”. In these cases, a Court may order that the ill-gotten gains be paid over to the party whose rights were violated. This may require the services of a forensic accountant.
0. Partial Disgorgement/Restitution - In some cases of disgorgement or restitution, the violated right is not important enough to justify a full restitutionary award. An example might be a case where a developer slightly encroaches on neighbouring land or breaches a negative covenant to limit the number of units in a block of townhouses or apartments. Since it would be unreasonable to order that the whole complex be knocked down (especially if homeowners and tenants have moved in), a Court may also consider it unreasonable that the developer’s entire profit go to the person who owns the encroached-upon land or who was made the promise not to over-develop. Instead, then, Courts in these cases may ask, how much money might the rights-holder have reasonably accepted to forego their rights, in a fictional transaction with the breaching party? This assessment will be based on the market value of the violated right, requiring expert evidence from someone experienced in the relevant industry.

Related Havilah Legal service(s): Commercial Litigation