Lloyd's Maritime and Commercial Law Quarterly
SUBJECTIVE VALUATION OF ENRICHMENT IN RESTITUTION FOR WRONGS
Craig Rotherham*
The received wisdom is that release-fee awards, sometimes known as “Wrotham Park damages”, are available against morally blameless defendants who have committed torts of strict liability. This article argues that such defendants who have not been incontrovertibly enriched as a result of any potential benefit gained from the wrong should be entitled to rely on principles of “subjective devaluation”, rather than having their liability assessed according to the objective value of that benefit. On the other hand, in contrast to the approach taken in cases of subtractive unjust enrichment, defendants should not be protected in this way if they were careless in breaching a claimant’s rights. In addition, this article suggests that, in cases of deliberate breaches where it can be shown that the defendant attached a value to the benefit in question that exceeds its market price, the defendant should be liable at that higher level. It is apparent that it is only if release fees are treated as gain-based that the interests of morally blameless defendants can be appropriately accommodated through principles such as subjective devaluation that serve to protect the autonomy of deserving defendants.
I. INTRODUCTION
The courts on occasion provide relief for breaches of common law rights by requiring defendants to pay what would have amounted to a reasonable fee for the relaxation of the right breached. Such release-fee awards are available, it would seem, even against morally blameless defendants who have committed torts of strict liability, such as trespass or conversion.1 This article considers whether such defendants who have not been incontrovertibly enriched as a result of a wrong should be entitled to avail themselves of the concept of “subjective devaluation” to avoid being held liable for the objective value of the benefits in question. Equally, it asks whether there are circumstances in which a
* Professor of Law, University of Nottingham.
The following abbreviations are used:
Birks: Peter Birks, Introduction to the Law of Restitution, revd edn (Clarendon Press, 1989);
Burrows: Andrew Burrows, The Law of Restitution, 3rd edn (Oxford University Press, 2011);
Edelman: James Edelman, Gain-Based Damages: Contract, Tort, Equity and Intellectual Property (Hart, 2002);
Virgo: Graham Virgo, Principles of the Law of Restitution, 3rd edn (Oxford University Press, 2015).
1. See below, text accompanying fnn 37–48.
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