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Where a defendant has made a profit from a civil wrong such as a breach of contract or a tort, damages can be directed to stripping the profit from the defendant. For example, in Hickey v Roches Stores (High Court, unreported, 14 July 1976) (pdf) Finlay P held

Where a wrongdoer has calculated and intended by his wrongdoing to achieve a gain or profit which he could not otherwise achieve and has in that way acted mala fide then irrespective of whether the form of his wrongdoing constitutes a tort or a breach of contract the Court should in assessing damages look not only to the loss suffered by the injured party but also to the profit or gain unjustly or wrongly obtained by the wrongdoer.

So far as breach of contract is concerned, English law reached the same conclusion in AG v Blake [2001] 1 AC 268, [2000] UKHL 45 (27 July 2000). It was a controversial conclusion. It has been applied in Esso Petroleum Co Ltd v Niad [2001] EWHC 6 (Ch) (22 November 2001), considered in passing in Sempra Metals v Revenue [2008] AC 561, [2007] UKHL 34 (18 July 2007) and Kuddus v Chief Constable of the Leicestershire Constabulary [2002] 2AC 122, [2001] UKHL 29 (7 June 2001), and distinguished in Experience Hendrix Llc v PPX Enterprises [2003] EWCA Civ 323 (20 March 2003), WWF-World Wide Fund for Nature v World Wrestling Federation Entertainment [2008] 1 All ER 74, [2008] 1 WLR 445, [2007] EWCA Civ 286 (02 April 2007), and Devenish Nutrition v Sanofi-Aventis SA (France) [2008] 2 All ER 249, [2008] 2 WLR 637, [2007] EWHC 2394 (Ch) (19 October 2007).…

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Lord Neuberger, outgoing Master of the Rolls in the England and Wales Court of Appeal and incoming President of the United Kingdom Supreme Court, delivered a lecture under the above title at the Max Planck Institute for Comparative and International Private Law in Hamburg on 9 July last. The paper has just been published on the judiciary website (link). Picking up where Baroness Hale left off in “Judgment Writing in the Supreme Court” (pdf | html), his theme was the nature of the relationship between the bench and the academy.

He began with the observation that, the relationship between judges and academics had long been that of ships passing in the night. Historically, convention barred citation of works while their authors were still alive. In the Irish courts in the not too distant past, this convention was still alive and well. I remember discussing a case with a then-serving but now-retired judge. He commented that he had found something I had written “quite useful” (or something equally droll). And he added – matter-of-factly – that he didn’t cite me because I wasn’t dead! I must confess that I didn’t find that comment particularly useful at all.…

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In the first stage of Island Ferries Teoranta v Minister for Communications, Cooke J held that harbour charges imposed on the plaintiff in Rossaveel Harbour (pictured above) in Galway Bay by the defendant were ultra vires, and that the detention of the plaintiff’s vessel, the MV Ceol na Farraige (the “music of the sea”), to seek to compel payment of the charges, was a trespass (see [2011] IEHC 388 (18 October 2011)). In the second stage of the proceedings, Cooke J awarded the plaintiffs a total of €92,243 in compensatory damages (see [2012] IEHC 256 (26 June 2012)). In yesterday’s post, I considered what a restitutionary claim at Irish law might have looked like had the case evolved slightly differently. In this post, in the context of the decision of the UK Supreme Court in the FII case (Test Claimants in the Franked Investment Income Group Litigation v Inland Revenue [2012] 2 WLR 1149, [2012] UKSC 19 (23 May 2012)) and the decision of the Court of Justice of the European Union in the Littlewoods case (Case C-591/10 Littlewoods Retail Ltd v Her Majesty’s Commissioners for Revenue and Customs [2010] ECR-I nyr, [2012] EUECJ C-591/10 (19 July 2012)), I want to consider what that claim might have looked like had EU principles been added to the mix.…

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