Basic Process for Assessing Damages: 97 Select interest that deserves vindication 97 a. Restitution 97
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Anton Piller OrdersDeveloped primarily in the context of theft of intellectual property Intended to prevent irreparable harm to usually the loss of critical evidence needed to establish case at trial. Scenario: Think ∆ is stealing your IP; you expect that if you start the action and seek evidence, they, as criminals, will get rid of the evidence. This wasn’t a big problem when you could get into court fast, and before information was digital. Starting point: Entic v. Carrington – no search and seizure before full court process. No one can enter private property and take away material. That’s still the law, but courts can grant Anton Piller orders that do allow this, sort of. Lord Denning, who created them (of course) said explicitly that he was not giving out a “civil search warrant”. Courts aren’t telling they can knock down the door – just telling ∆s to open the door. Important distinction: doesn’t have any right to use force on an Anton Piller order whereas a real search warrant does allow police to break down the door. It’s just an order to ∆ that if you don’t open door court will put them in jail. Circumstances: an alternative to discovery Fraud surprise ex parte Requirements Very high threshold: “If Mareva injunctions are nuclear, this is the borg” Extremely strong prima facie case Evidence of possession of incriminating docs/things Evidence of risk of loss/destruction Irreparable harm Protecting ∆s It’s significantly intrusive, so there are protections. Full factual disclosure on application (may be exposed to trespass charges, punitive damages if obtain order fraudulently) Role of supervising solicitor For the first ten years of these orders, solicitor had dual role: Solicitor went to court to get the injunction, but also executed it. In the course of execution, you are office of the court – have to make sure your client et al aren’t acting outside the order. Order will often specify what you can take away, e.g. have to watch your client. This was putting lawyers in difficult pos’n. Standard practice now: appoint a supervising solicitor. So, lawyer gets injunction, participates in deployment as lawyer, but there’s an independent lawyer who supervises the whole thing, solely as an officer of the court. Some debate as to whether you need supervising solicitor at every site where you exercise an Anton Piller order This question comes up in regard to rolling orders – where you have street vendors, flea markets etc. selling copyrighted material, but dispersed around a large area. A draft order indicates how the court foresees possible problems: E.g. in Celanese, goes in, seizes documents, many of which are correspondence b/w ∆ and solicitor so, privileged. Also may get ∆’s own trade secrets, etc. So, the typical Anton Piller order assigns the supervising solicitor to sort through all the docs taken, to ensure doesn’t see things they shouldn’t. Rolling Orders Often the point isn’t to get stuff for litigation; you’re just trying to shut down a counterfeit operation e.g. Tshirt vendors – you aren’t going to sue them, it’s too small time. But you get an order to seize the counterfeit material and thereby stop it from being sold outside a stadium, e.g.
First part of order: can’t hide or dispose of any of the material. Preserve it. Second: regular injunction: stop copying our porn. Third: gag order. Don’t notify anyone else who’s been supplied. 1 Esso v. Marden: bought gas station based on misrepresented info re throughput capacity. Made much less money than would have if that had been the capacity, but since that was never actually possible, he got his reliance damages, as well as some opportunity costs for lost other work. 2 McCrae v. Commonwealth Disposals: K for salvage on sunken tanker, but it turned out there was no sunken tanker. Reliance damages awarded because expectation damages were impossible to prove. 3 Anglia Television v. Reed: expenditures made in anticipation of K were recoverable. 4 Bowlay Logging: expenses were far more than anticipated profits. Held: can’t be awarded the reliance amount. They also can’t get additional expected profits, because there was more to be logged but also more to be lost – they were losing $ on every tree, so they would have lost even more $ if they continued. Where expectation damages are calculable, they are the ceiling. can’t put self in better position by claiming reliance instead of expectation damages. ∆’s breach didn’t cause the loss in this case entering into a losing contract did. To award reliance damages in excess of expectation would unsettle the allocation of risk b/w the parties, and would do more than putting in the position they would have been in had K been performed. 5 Sunshine Vacations v. Hudson’s Bay Company [BCCA]: K to set up retail locations in Bay stores. Bay breaches K by renewing leases of best locations to an old customer, ’s competition. claims wasted expenditures (capital investment not recovered on breach) and lost profits. Held: First, can’t get both because that’s double compensation (Note: this is true, as long as “profit” means gross profits if it’s net, then the expenses have already been subtracted, and thus aren’t being compensated). Second, new principle: where we don’t know what the outcome of a K would have been, we’ll at least assume that venture would have broken even (i.e. earned enough gross revenue to cover the expenditures under the K.) 6 Whitwham v. Westminster Brymbo Coal and Coke Company [1896, Eng. CA]: ∆ tipped spoil onto land, gained £900 advantage but only ~£200 diminished value. Sued for injunction and damages for trespass. Held: damages not limited to diminution of value; measured also based on value derived by wrongdoer from their tort. didn’t just lose value in the land, they lost the use of the land that was the value gained by ∆. So, really, it’s still a measure of loss, though the court does state explicitly that they’re aiming to take away ∆ gain. 7 Strand Electric Co. v. Brisford Entertainments Ltd. [1952, Eng. CA]: Due to misunderstanding around the sale of theatre & confusion as to who would own contents, ∆ misappropriated electronic control panels, and ultimately refused to return them. Issue: would have trouble proving what was lost (would it have used circuit boards, rented them out, etc?) Held: ∆ to pay reasonable cost of renting circuit boards for period in which it retained them. Court flips the onus and assumes 100% utilization, gives remedy measured by whole notional benefit – which is probably far more than could have proved on compensatory damages. 8 AG v. Blake: ∆ was a turncoat spy, and then later he wrote a book about betraying England to the Soviets. Breached undertaking of secrecy to Britain. Even though state couldn’t prove loss (b/c info was all in public domain from news etc.), ∆ was made to disgorge profits. Court backtracks hard and lists many things that aren’t sufficient to get this remedy: Cynical and deliberate breach ≠ sufficient. Breach enabling ∆ to enter more profitable K elsewhere ≠ sufficient. Entering new K putting ∆ out of power to fulfill K w/ ≠ sufficient. So, must be a special case to get restitution: either a substitute for equitable relief or a public policy concern. 9 Phillips v. Homfray [1883, Eng. CA]: ∆ mining coal from property. Court awarded the revenue of coal less the cost of doing the mining. Note: the $ saved wasn’t factored in, so ∆ still kind of got a benefit. 10 Broome v. Cassell: ∆ knew they were being defamatory, but made statements anyway. In such a situation, courts will award restitution disguised as punitive damages: “one man should not be able to sell another man’s reputation for profit.” Court calls it punitive damages, but there’s also an element of unjust enrichment. 11 Garland v. Enbridge [SCC]: Consumers Gas is overcharging. Benefit: ∆ got extra $. Detriment: customers had to pay. No juristic reason: K was illegal, so no valid reason to let ∆ keep profits. But: ∆ was operating under approved rate structure, acting in good faith, and had been somewhat flexible in their position. Once on notice, no more excuse. So SCC drew a line at the time they should reasonably have known the rate structure wasn’t ok, and forces disgorgement of profits after that time. 12 Peter Pan: ∆ stole confidential info from . Licensing arrangement with offshore firm, which stole special brassiere info and manufactured their own product, incorporating the stolen design features. Held: award calculated based on sales revenue less cost of manufacture – net profit measure. Note: ∆ also argued it was unfair to measure by full net profit, since ∆ is in the business already, and would have made some profit without the theft. However, Denning said the causal connection was strong enough that ∆ couldn’t have earned that stream of income w/o using the stolen info, and therefore declines to apportion. 13 Seager v. Copydex Ltd. (No. 2) [1969, Eng. CA]: manufacturer of Invisigrip carpet grips; ∆ appropriated IP, incorporated into their products. Very difficult for to establish loss – invention was in early stages, it would be highly speculative. Held: measured the benefit obtained by ∆. So, assume ∆ paid the value of the idea, and apply damages based on royalties that would have been paid to . 14 LAC Minerals [1989, SCC]: owned mining co, believed valuable deposits on ∆ property. JV with ∆, plan to share revenue 50-50. But, in the course of negotiations, disclosed enough info that ∆ could stake the property on its own w/o entering the K with . Held: court imposed a constructive trust over property for , for 100% of the beneficial value. So, more than would have gotten if K had been upheld. Note: after judgment and ∆ can bargain. 15 Becker v. Pettkus [1980, SCC]: Lived together, he was the primary wage earner but she provided non-monetary benefits. It would be unjust to allow him to benefit without her getting something back. Thus, constructive trust imposed. 16 Bank of America v. Mutual Trust [2002, SCC]: “Efficient breach should not be discouraged by the courts. This lack of disapproval emphasizes that a court will usually award money damages for breach of contract equal to the value of the bargain to the .” 17 Wrotham Park Estate Co. v. Parkside Homes Ltd. [1974]: Restrictive covenant limited # of homes ∆ could build on the land. In breach of covenant, ∆ developer built 14 extra homes. Issue: no loss to , but ∆ gained from breach of K. Held: ∆ stripped of a portion of the value it reaped from the property. Court said they would measure the wrongfully obtained benefit by the amount the court thinks reasonable parties would have come up with as a measure of the benefit. Basically, calculates how much developer would have paid for the right to build the extra homes. 18 Surrey Council v. Bredero [1993, Eng. CA]: ∆ breached restrictive covenant and built 5 extra houses in development. Breach ≠ diminish value of property, but argued deprived of an opportunity. Held: No deprivation, nominal damages only. Wrotyham Park award was not extendable into K law generally, only available on the basis of the “restitutionary principle.” The case was characterized as simple breach of K, and this restricted to standard lost value calculation of damages. 19 Jaggard v. Sawyer [1995, Eng. CA]: Court reconsiders Bredero and upholds Wrotham Park. ∆ built house on land that adjoined land affected by a restrictive covenant, and ∆ breached the covenant by giving right of access to the house over the protected land. Also in breach of K, ∆ gave access via roadway opposite house. Could be characterized as trespass as well as breach of K. wanted an injunction to prevent access to the house. To support that application, she said the damages would be nominal, and thus injunction necessary. Held: injunction unduly oppressive to ∆; entitled to monetary award, measured by her share of reasonable license fee that ∆ would likely have agreed to pay for permission to build. Court described the Wrotham Park approach as “appropriate even on pure compensatory principles.” 20 Edwards v. Lees: ∆ trespassing in cave under neighbour’s property, earning profit from selling tickets to tourists. Two differences from Peter Pan: 1. Court does use a net profit method here – revenue ≠ just gate receipts, but subtracts cost of putting the amusement together. 2. Lees doesn’t get 100%, but only the portion that’s attributable to the wrong (trespass). So, court counts the attractions on either side of the property line, and uses a ratio to figure out the benefit. 21 Townsview Properties v. Sun Construction Co. Ltd. [1973, ONHC]: ∆ used property to build apartment buildings on ∆ property – vacant lot, ∆ filled it in afterward, no harm to property, but it made it easier for ∆ to build. couldn’t point to any special damage, only advantage to ∆, but sought punitive/exemplary damages for ∆ wrongful behaviour – unjustified and unwarranted trespass, resulting in substantial gain for ∆. Held: punitive/exemplary damages awarded, to strip ∆ of the gain (sometimes treated as restitutionary, b/c punitive damages are measured by the value of the benefit). However, no additional punishment on top of that, so this was not a strong deterrent. Best conceptualized as an unjust enrichment case. 22 Hill v. Church of Scientology [1995, SCC]: sued for defamation; ∆ systematic attempts to discredit through prolonged and intentional campaign to defame . Held: $300k general compensatory damages. $500k additional compensatory damages b/c of aggravated nature of the defamation (long time, extreme). $800k in punitive damages above the compensatory damages. 23 Robitaille v. Vancouver [1981, BCCA]: hockey player, team & doctor decided he was malingering and made him play despite injury. Ultimately, injuries worsened, and he sued team and doctor for negligence. Held: beyond negligence. Court awarded $40k punitive damages for pressuring him to play. 24 Vorvis v. ICBC: SCC said you can’t have punitive damages in breach of K case unless the breach also amounts to an independently actionable wrong. Most courts interpreted this as meaning there had to be a tort – i.e. that the IAW had to be a separate civil cause of action, such as defamation. 25 Whiten v. Pilot: ∆ insurance co refuses to pay insurance on home. ∆ breached K by failing to pay, and also breached a contractual duty of good faith. Court says you can’t get punitive damages just for failing to perform the K – must have an independent wrong; in this case, the breach of the implied duty of good faith and fair dealing. So, two obligations in insurance Ks: (1) pay $ on occurrence of a specified risk, and (2) treat customers in good faith. A breach of the duty of good faith can give rise to an award of punitive damages. Whiten clarifies Vorvis: IAW doesn’t have to be a tort – can be a breach of something else in the K. So long as it goes beyond the primary deliverable, and also is a breach of another element of the K which is independently actionable. 26 Lebeck v. McDonalds: Hot coffee, serious burn (needed skin grafts). Media had a field day with this one, but really the injury was severe so it’s not as crazy as portrayed, and also it got send back down and then settled for less than $600k (confidentiality agreement signed so we aren’t sure of exact amount). 27 BMW v. Gore: New car had a dent; ∆ repaired and sold it as new w/o disclosing that it wasn’t completely new. Jury awarded $4 million. But, really, it’s not as ludicrous an award as it sounds: evidence that this was the industry practice, and jury was trying to deal with more than just this one instance sending a deterrent message to the industry. The case was sent back on the award – or, court said it would order a new trial unless the settled for $50k, so they did so. 28 Teno: π suggested taking mother’s earnings as model for the child. Court says no evidence that child would also become a teacher. Chooses $7500 as conventional sum, just above poverty line, and then reduces by 20%. Problem: there was no evidence that she would be impoverished and on welfare, either. 29 Krangle [2002, SCC]: Group home was in best interests of π, and cheaper too 30 Schrump v. Koot: π suffered back injury, evidence of 25-50% chance of needing further back surgery. Adopting civil std of proof, ∆ says not proven things will get worse, and can’t give damages for sthg not likely to occur. Held: that’s the std when dealing w/ things that HAVE happened before trial (e.g. establishing causation), but when dealing w/ future events we take a more nuanced approach treat the future event not as sthg that will or won’t happen, but as a contingency. In this case, because it was an appeal, the court just said that it looked like the jury had added an extra ten or twenty thousand to the award, which covered that contingency. 31 Janiak: 75% chance that back surgery would eliminate the injury. ∆ said no damages because future prognosis is 100% cured. Held: also a chance that it wouldn’t cure the injury. So, awarded damages and deducted 75%. 32 Bougoin [2006, ONHC]: Slip & fall resulted in chronic phantom pain; psychiatrist recommended cutting off the leg to solve it. Division in medical opinion; in particular, the risk-benefit analysis was significantly different from Janiak. Back surgery is one thing; amputating a limb is another, particularly when the promised benefit is far more speculative. 33 Mason v. Peters [SCC]: 14 year old boy, lived with single mother. Special relationship: some dependency, household guidance, etc. Held: court gave mother a modest award for loss of support/guidance of child. 34 To and Lian: Chinese families, emigrated. Filial piety, loss of future expectancy. Cultural evidence taken into account in granting the award. 35 Fletcher v. Bealey: manufacturer bought facility to store waste (mountain of sulphuric material). π downstream user of river water, concerned the material will leach into the river. π business makes paper, needs perfectly clean water to make paper. Hasn’t been affected yet, but worried that it will be a problem as waste leaches in. Held: no injunction. Court said the danger has to be imminent, which it wasn’t in this case. Policy to allow ∆ to use their own property. Judge had a positive expectation for future technological developments, such that before this became a problem there would be a way to prevent it. Not worth the burden on ∆ to prevent them from disposing their waste when the risk is not high and the harm wouldn’t be all that severe. Low probability was the point that killed it here – it was not at all certain that the harm would happen. 36 Hooper v. Rogers: ∆ removed a large part of soil holding upstream land. π was worried that the removal of support would result in slippage. ∆ said it hadn’t happened yet so there was no imminent danger. By the time of this application, the parties were in a toxic relationship and π doesn’t want it to continue. Doesn’t really want an injunction, wants damages, but you can only get them in place of an injunction. Held: court grants the damages, which presupposes approval of the injunction. Reasons: the land will slip, and nothing is going to stop it from happening. Court characterized imminence as a question of inevitability, rather than immediacy. 37 Palmer v. Nova Scotia Forest Industry: ∆ was going to spray some extremely toxic herbicides in the forest. Held: no injunction. Although there’s a good possibility people will be hit by the spray, consequences aren’t clear because dosage would be so low. Court doesn’t want to shut down an important part of the economy (forest spraying) unless the risk is proven to be higher. π argued for a precautionary principle, such that things must be established as safe before allowing their use. However, court rejected this as impracticable and not in conformity with accepted practices. If such a standard were enforced, a lot of things would be removed from use and it would basically be disastrous. Courts don’t want to slow the progress of society with overzealous injunctions. 38 Redland Bricks v. Morris: ∆ uphill strawberry farmer, downhill brickmaker. Brickmaker is on its own quarry, but they’ve dug so much clay downhill that farm has started to sink. seeks order that ∆ take all necessary steps to repair land . Held: no order. CA says that while there is a nuisance, they are choosing in this case not to impose the burden on ∆. 39 Bellini Custom Cabinetry Ltd. v. Delight Textiles Ltd.: Laneway dispute. The benefit wasn’t trivial, but the cost of compliance was huge. Court granted the injunction. Unimpressed with ∆ bad behaviour: they were supposed to do surveys, and they did but then they life about what they found said could use laneway without trespassing, but it was. Also ∆s didn’t do other work they were supposed to do. 40 Lewvest v. Scotia Towers: Overswinging crane case. Established sacrosanct status of property. 41 Directory: outlines outlines -> Chabot College Fall 2010 Course Outline for Computer Application Systems 60 business software applications/general accounting outlines -> Adil Khan Contracts Midterm outline- waldron outlines -> Remedies for breach of promise (1) The Interests Protected outlines -> Chapter Five: Written Documents 1 Unsigned Documents 1 outlines -> Cases and Materials on Contracts outlines -> College of Science and Health outlines -> Evidence outline outlines -> 2. Act, Omission, Status or Circumstances 4 Consequences and Causation 8 Introduction to Mens Rea and Intent 10 Levels of Fault 11 outlines -> Course Outline as/huma 2650 0A Download 1.08 Mb. Share with your friends:
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