NCA Remedies cheat sheet

Compensatory damages restore the claimant to the position they would have occupied had the wrong not occurred; the measure is the loss actually suffered, judged at the date of breach or trial depending on the type of loss.

Restoration (restitutio in integrum) is the governing principle for tort and breach of contract; the burden of proving the quantum of loss lies on the claimant on the balance of probabilities.

Remoteness in contract follows the two limbs of Hadley v Baxendale: losses arising naturally in the usual course, and losses within the parties' actual contemplation at formation.

Remoteness in tort requires the damage to be of a kind reasonably foreseeable; the precise manner or extent of the harm need not be foreseen (the eggshell-skull rule applies to the victim's susceptibility).

Mitigation: the claimant must take reasonable steps to reduce loss; failure to do so bars recovery of avoidable loss, but the claimant need not take steps that are reasonable only in hindsight or that would damage reputation.

Contributory negligence apportionment reduces damages by the claimant's share of responsibility; in contract, contributory negligence is available only where a concurrent tort duty exists.

Non-pecuniary loss (pain, suffering, loss of amenity) is recoverable in tort but generally not for breach of contract except where the contract's object was to provide enjoyment or peace of mind.

Liquidated damages clauses are enforceable if they are a genuine pre-estimate of loss; a clause is penal if it imposes a detriment out of all proportion to the innocent party's legitimate interest in performance.

Specific performance is discretionary and is refused where damages are adequate, where the claimant has behaved inequitably, or where constant supervision by the court would be required.

Injunctions are discretionary equitable remedies; prohibitory injunctions restrain conduct, mandatory injunctions compel positive action, and quia timet injunctions prevent threatened wrongs.

Interlocutory injunctions apply the American Cyanamid test: serious issue to be tried, then balance of convenience; the claimant must give a cross-undertaking in damages.

Rescission unwinds the contract ab initio, restoring both parties to their pre-contract positions; it is barred by affirmation, lapse of time, third-party rights, or impossibility of restitution.

Rectification corrects a written instrument that fails to record the parties' common continuing intention; it is not available to improve a bad bargain.

An account of profits strips the defendant of gains from the wrong; it is common in breach of fiduciary duty and intellectual property infringement rather than ordinary breach of contract.

Declarations state the parties' legal rights without coercive effect; they are discretionary and may be granted even where no other relief is sought.

Equitable remedies are discretionary, require clean hands, and are generally unavailable where the claimant delays (laches) or where a bona fide purchaser for value without notice would be affected.

Claims in debt are for a liquidated sum and are recoverable as of right; claims for damages are unliquidated and subject to proof, remoteness, and mitigation.

Restitution for unjust enrichment requires an enrichment, at the claimant's expense, with no juristic reason; defences include change of position and bona fide purchaser.

Interest on damages may be awarded under statute or contract; simple interest is calculated as principal × rate × time, and compound interest is reserved for exceptional cases such as breach of fiduciary duty.

Aggravated damages compensate for mental distress caused by the manner of the wrong; exemplary (punitive) damages punish and are rare, requiring oppressive or calculated conduct.

Nominal damages are awarded where a right is infringed but no loss is proved; contemptuous damages signal disapproval of the claimant's conduct.

Limitation periods bar remedies after expiry: contract claims generally 6 years (12 for deeds), tort claims 6 years from damage or 3 years from knowledge, subject to judicial discretion to extend.

Set-off allows a defendant to reduce the claimant's award by cross-claims; equitable set-off requires a close connection between the claims, while legal set-off requires liquidated, presently due sums.

A claimant cannot recover more than the loss suffered; double recovery is avoided where the same loss is claimed under multiple heads or against joint wrongdoers.

Sale of goods: the prima facie measure is the difference between contract price and market price at the date of breach; for non-delivery, the buyer may also claim consequential losses.

For defective goods accepted by the buyer, damages are the cost of cure (reasonable repair) or the diminution in value, whichever is the appropriate measure; the cost of cure is capped at the diminution in value where repair is disproportionate.

Loss of bargain damages require the claimant to have terminated the contract for repudiatory breach; if the contract is affirmed, only accrued rights and damages for the breach itself are recoverable.

Reliance loss (wasted expenditure) is recoverable where profits are too speculative to assess, provided the expenditure was not wasted independently of the breach.

Loss of a chance is recoverable where the chance was substantial and not merely speculative; the court assesses the percentage probability of the lost benefit.

Third-party losses: a claimant may recover for losses suffered by another only where the claimant is legally liable to that third party or holds the benefit on trust (the narrow exceptions to privity).

The Wrotham Park measure awards a reasonable sum for the release of a contractual or proprietary right infringed by the defendant's breach, assessed as a hypothetical bargain.

Tax and benefits: damages are generally taxable in the hands of the recipient; awards for personal injury are not taxable, and the court may gross up awards for tax where appropriate.