Davies, PS; (2018) One Step Backwards: Restricting Negotiating Damages for Breach of Contract. Lloyd's Maritime and Commercial Law Quarterly , 2018 (4) pp. 433-440.

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Abstract

Doctrines named after cases tend to rest on shaky foundations. The basis and availability of “Wrotham Park damages” has long been uncertain. In Morris-Garner v One Step (Support) Ltd the Supreme Court thought that the label “Wrotham Park damages” was unhelpful and confusing, preferring the term “negotiating damages”. But changing the brand does not necessarily change the substance. The Supreme Court had to decide when such damages should be awarded for breach of contract. Negotiating damages have been more frequently awarded following the decision of the House of Lords in Attorney-General v Blake; indeed, in Experience Hendrix LLC v PPX Enterprises Inc Mance LJ thought that Blake represented a “new start in this area of the law”. However, that now seems to have been a false dawn. In One Step, the majority of the Supreme Court cast some shadow on Blake and Experience Hendrix, and appear to have largely returned the law on negotiating damages to the position before Blake. Negotiating damages are available “where the breach of contract results in the loss of a valuable asset created or protected by the right which was infringed”. It is not easy to define the limits of this approach based upon a “valuable asset”, but it includes circumstances where the claimant’s property rights have been infringed, and this is taken to include intellectual property and confidential information. Beyond these situations, negotiating damages are not generally available for breach of contract.

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