For these purposes, the remedy of damages is normally intended to compensate for the claimant's loss of expectation (alternative rationales include restitution and reliance).
Where the court has knowledge of what actually happened subsequent to the breach, the Bwllfa principle, arising from the 1903 case of Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v. Pontypridd Waterworks Co., dictates that the assessment of damages should take account of what actually happened rather than just the economic potential anticipated at the time when the contract was agreed.
Lord Macnaghten asked in his ruling on this case:Why should [an arbitrator] listen to conjecture on a matter which has become an accomplished fact?
[2]As a matter of public policy, the law aims to respect the reasonable expectations of all parties involved in the dispute.
Even when there is a breach, the court will not penalise the "guilty" party (see Addis v Gramophone Co Ltd [1909] AC 488 which prevents the award of punitive or exemplary damages in a purely contractual action), nor will it strip away all profits made at the expense of the other unless the breach is exceptional as in Attorney General v Blake [2000] 3 WLR 635 which appears to create a wholly novel form of contractual remedy, namely the restitutionary remedy of an account of profits for breach of contract where the normal remedies are inadequate.
The law also recognises that unfairness may flow from inequality in bargaining power and addresses oppressive exemption clauses.
His claim for the loss of profits expected from a successful salvage was dismissed as too speculative, but reliance damages were awarded for wasted expenses.
The court seemed to proceed on the claimant's statistical chance of winning (as if she were a lottery player) without any actual assessment of her physical attributes against any particular criteria of beauty.
The Court of Appeal held that if the client could show on the balance of probabilities that: (a) they would have sought renegotiation with the third party, and (b) that they had a substantial chance of negotiating (not necessarily that they would on balance of probabilities have negotiated) a better deal from the third party, then the court should quantify and award compensation for their loss of chance of doing so.
did not intend this to be a precise or exhaustive statement of the circumstances where loss of a chance may constitute actionable damage and his observation has not been so understood.
"[4] In Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251 an employee made redundant by BCCI, claimed the usual statutory payments and, under the aegis of ACAS, signed an agreement to accept a sum "in full and final settlement of all or any claims of whatsoever nature that exist or may exist against BCCI."
When the parties signed the release, they could not have realistically supposed that a claim for damages in respect of disadvantage and stigma was a possibility.
But in earlier proceedings on the question of damages, the formidable practical obstacles presented by the limiting principles of causation, remoteness, and the duty of the claimant to mitigate any losses proved insurmountable.
If she had served the minimum three-month period of notice stipulated in the contract, she would have been able to bring a claim for unfair dismissal.
While the award of damages in tort may protect pre-existing expectations (e.g. of earning capacity or of business profits), a claimant cannot be seen to benefit from the breach of the duty of care.
The principle is that a claimant must have had a more than 50% chance of survival to establish causation in order to satisfy the balance of probability test.
In Kitchen v. Royal Air Force Association [1958] 2 All ER 241 a solicitor failed to issue a writ within the period of limitation in respect of a fatal accident.
Similarly, in Stovold v. Barlows (1996) PNLR 91 a solicitor acting for a vendor failed to use the appropriate system for sending the title deeds to a purchaser.
In Coudert Brothers v. Normans Bay Ltd. (formerly Illingworth, Morris Ltd.) [2004] EWCA Civ 215 the court reviewed two earlier authorities:Allied Maples Group Ltd v Simmons & Simmons and Equitable Life Assurance Society v Ernst & Young (2003) EWCA Civ 1114.
The claimant, Normans Bay Ltd. was advised by Coudert Brothers in a tender for 49% of the shares in a Russian company, Bolshevichka, in 1993, but the investment was lost.