Gains Based Remedies: the misguided search for a doctrine
In this article Tom Stafford (Paralegal at Clyde & Co LLP) examines the phenomenon of “Gains Based Remedies”. These are awards that, unlike classical damage awards which are calculated by reference to the loss suffered by the claimant, correlate to the gain made by the defendant. A couple of common examples include an account of profits for breach of trust claims, or the “disgorgement” damages that were awarded in AG v Blake. These awards are however available for a spectrum of varied wrongs. Their seeming lack of unity has often baffled commentators who have tried to search for an underpinning doctrine. One particularly renowned commentary is that of Professor Edelman’s, who suggests that these wrongs can be understood by being broken down into one of two categories: awards which seek to deter wrongdoing, and awards which reverse a wrongful transfer of value. The purpose of this article is to discuss the flaws of this view of the law, and to suggest that in fact, any search for a doctrinal underpinning to Gains Based Remedies is misguided. The cases in which these awards are granted have only one feature common to all: the claimant’s loss is, for whatever reason, difficult or impossible to assess. For that reason, the courts use the only other measure of the wrong available: the defendant’s gain.
Work published in the IALS Student Law Review is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.
Those who contribute items to IALS Student Law Review retain author copyright in their work but are asked to grant two licences. One is a licence to the Institute of Advanced Legal Studies, School of Advanced Study of the University of London, enabling us to reproduce the item in digital form, so that it can be made available for access online in the open journal system and repository and website. The terms of the licence which you are asked to grant to the University for this purpose are as follows:
'I grant to the University of London the irrevocable, non-exclusive royalty-free right to reproduce, distribute, display, and perform this work in any format including electronic formats throughout the world for educational, research, and scientific non-profit uses during the full term of copyright including renewals and extensions'
The other licence is for the benefit of those who wish to make use of items published online in IALS Student Law Review and stored in the e-repository. For this purpose we use a Creative Commons licence allowing others to download your works and share them with others as long as they mention you and link back to your entry in IALS Student Law Review and/or SAS-SPACE, but they can't change them in any way or use them commercially