West Law Report

No exceptional circumstances

Posted in Times Law Report by mrkooenglish on November 16, 2008

From The Times
November 4, 2008
No exceptional circumstances

Court of Appeal

Published November 4, 2008

Devenish Nutrition Ltd v Sanofi-Aventis SA (France) and Others

Before Lord Justice Tuckey, Lady Justice Arden and Lord Justice Longmore

Judgment October 14, 2008

An account of profits could not be awarded on a claim for a nonproprietary tort.

The Court of Appeal so stated, inter alia, when dismissing the appeal of the claimant, Devenish Nutrition Ltd, against the decision of Mr Justice Lewison ([2008] 2 WLR 637) on the preliminary issue that Devenish was not entitled to restitutionary relief against the defendants: Sanofi-Aventis SA (France), Aventis Animal Nutrition SA (France), Rhodia Ltd, F. Hoffman-La Roche AG (Switzerland), Roche Products Ltd, BASF AG (Germany), BASF plc and Frank Wright Ltd.

The Commission of the European Communities found (OJ 2003 L6 p1) that the defendants had entered into illegal cartels. The claimant issued follow-on proceedings having purchased products from the defendants.

On the trial of the preliminary issue on remedies, the judge held, inter alia, that a restitutionary award was available only for proprietary torts and that on the facts compensatory damages would have been adequate.

Mr Christopher Vajda QC and Mr Andrew Burrows QC for the claimant; Mr Tom de la Mare and Mr Brian Kenelly for the first to third defendants; Mr Mark Hoskins for the fourth and fifth defendants; Mr Mark Brealey, QC and Mr Stephen Brown for the sixth to eighth defendants.

LADY JUSTICE ARDEN said that Attorney-General v Blake ([2001] AC 268) provided that in exceptional cases, where normal remedies were inadequate compensation for breach of contract, the court could, if justice demanded it, grant a restitutionary award.

If such an award could be ordered for breach of contract without interference with a proprietary right, then a restitutionary award could be available for breach of a nonproprietary tort.

However, the court was bound by Stoke-on-Trent City Council v W & J Wass Ltd ([1988]1 WLR 1406), which precluded a restitutionary award. If that was wrong, exceptional circumstances of the kind in Blakewere a condition which was not satisfied in the present case, where damages would be adequate.

LORD JUSTICE LONGMORE said that in the light of Blake, he did not consider that Wass was authority for the proposition that categories in which an account of profits was permissible were necessarily confined to tortious claims for breaches of proprietary rights.

The only real argument in favour of such an order was a policy argument and that was not a step the courts should take.

LORD JUSTICE TUCKEY agreed that Wass meant that nonproprietary torts were an exception to the general principle in Blake.

Solicitors: Irwin Mitchell; Ashurst; Freshfields Bruckhaus Deringer; Mayer Brown International.

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