NCA Remedies common mistakes
NCA Remedies · Understand the traps and how to avoid them.
Treating every remedy question as 'what does the plaintiff want' and naming the remedy the claimant requests, instead of first classifying the underlying right (legal vs equitable) and the type of harm before choosing a remedy.
Candidates pattern-match on familiar fact patterns (breach of contract, negligence) and jump to the remedy label they associate with that cause of action, skipping the classification step that determines which remedies are actually available and which defences apply.
What to do instead
Before answering, write three lines: (1) the nature of the right infringed, (2) the type of loss (pecuniary, non-pecuniary, proprietary, dignitary), (3) whether the remedy sought is legal or equitable. Only then select the remedy. Practise by re-classifying ten past fact patterns into this three-line format before looking at the options.
Conflating compensatory damages with restitutionary or disgorgement remedies, awarding the claimant the defendant's gain where the loss measure applies (or vice versa).
The words 'compensation', 'restitution' and 'account of profits' are used loosely in study materials, and candidates memorise them as synonyms for 'money to the claimant' rather than as distinct measures with different triggers and different bars.
What to do instead
Build a one-page comparison table with columns: measure (loss vs gain), trigger (wrongful loss vs unjust enrichment vs breach of fiduciary duty), availability (legal vs equitable), and bars. Redo any missed question by stating which measure the facts actually support and why the other measure is unavailable.
Ignoring causation and remoteness as separate filters: candidates find breach and loss and then award the full loss without testing factual causation, legal causation, and remoteness of damage in sequence.
Exam fact patterns bury a novus actus interveniens or an unforeseeable head of loss in a subordinate clause, and candidates focus on the headline breach and the headline loss, treating the intervening event as background colour.
What to do instead
Adopt a fixed checklist for every damages question: breach, factual cause ('but for'), legal cause (intervening act, scope of duty), remoteness, mitigation, contributory fault, then quantum. Answer in that order and explicitly state where a claim fails on the checklist.
Awarding expectation damages for every breach, including cases where the claimant's expectation interest is speculative, the contract is for a non-pecuniary benefit, or reliance loss is the only reliable measure.
Expectation damages are taught first and most heavily, so candidates default to 'put the claimant in the position as if the contract had been performed' without checking whether that measure is provable, proportionate, or displaced by reliance or restitution.
What to do instead
For each contract remedy question, state the expectation measure, then ask whether it is (a) too speculative, (b) disproportionate to the legitimate interest, or (c) excluded by a valid liquidated damages or limitation clause. Where expectation fails, test reliance loss and restitution in that order.
Confusing specific performance and injunction thresholds, granting specific performance for personal service, for contracts requiring constant supervision, or where damages are adequate, and granting a mandatory injunction on the same low threshold as a prohibitory one.
Candidates learn 'equitable remedies are discretionary' as a slogan but do not internalise the concrete bars (adequacy of damages, mutuality, supervision, personal service, clean hands, delay, hardship), so they apply discretion as a gut feeling rather than a checklist.
What to do instead
Memorise the bars as a numbered list and apply each one explicitly in the answer, stating 'this bar is satisfied because...' or 'this bar defeats the claim because...'. Distinguish prohibitory from mandatory injunctions and note the higher threshold for mandatory relief.
Skipping equitable defences (laches, acquiescence, unclean hands, hardship, impossibility of supervision) once the claimant has established a substantive right to an equitable remedy.
Equitable defences are usually raised by a single sentence in the facts (a long delay, a prior inconsistent act, a hardship to a third party), and candidates who have already found a breach treat the remedy as automatic.
What to do instead
After establishing the equitable right, always run a dedicated 'defences' paragraph covering laches, acquiescence, unclean hands, hardship, and supervision. Practise identifying the one sentence in each fact pattern that signals an equitable defence.
Treating damages as the default remedy for equitable wrongs (breach of trust, breach of fiduciary duty) and ignoring proprietary remedies such as tracing, constructive trust, equitable lien, and subrogation.
Candidates compartmentalise 'damages' as the general remedy and 'equity' as a separate topic, so when a fiduciary misappropriates trust property they reach for compensatory damages and never consider following or tracing the asset.
What to do instead
For every fiduciary or trust question, ask first whether the claimant can identify a traceable asset. If yes, work through following, tracing, mixed funds, and the lowest intermediate balance rule before considering personal remedies. Keep a decision tree mapping proprietary vs personal remedies.
Misapplying mitigation: concluding the claimant failed to mitigate merely because they did not take the cheapest possible step, or conversely accepting every claimed mitigation expense without testing reasonableness.
The standard is reasonableness, not optimality, and candidates collapse it into a binary 'did they do something'. They also forget that the burden of proving failure to mitigate rests on the defendant.
What to do instead
State the test as 'reasonable steps in the circumstances' and allocate the burden explicitly to the defendant. When a mitigation expense is claimed, test whether the step was reasonable at the time, not whether it turned out well in hindsight.
Calculating quantum without applying the relevant limiting rules: contributory negligence apportionment, caps on non-pecuniary loss, the rule against double recovery, collateral benefits, and the date of assessment.
Candidates finish the liability analysis and then treat quantum as arithmetic, forgetting that apportionment, caps, and set-offs are legal rules applied after the gross figure is calculated.
What to do instead
Adopt a fixed quantum sequence: gross loss, date of assessment, deductions for betterment and collateral benefits, apportionment for contributory fault, application of any statutory cap, then interest. Show each step as a line in the answer even when the final number is not required.
Answering remedy questions in the abstract without tying the remedy to the specific facts: naming 'an injunction' or 'damages' without stating the terms, the parties bound, the duration, or the practical effect on the parties.
Under time pressure, candidates write the label and move on, treating the remedy as a conclusion rather than as an order with content. Examiners award marks for the precision of the order, not the label.
What to do instead
Draft every remedy as an actual order: who does what, by when, to whom it applies, for how long, and what happens on breach. Practise writing three-sentence remedy orders for past fact patterns and check them against the marking criteria for specificity.