NCA Remedies flashcards

33 cards. Read the term and the definition here. The deck at the top of this page is optional.

Compensatory damages

A sum awarded to restore the claimant to the position they would have been in had the wrong not occurred, measured by the loss actually suffered and proved on the balance of probabilities.

Restitutio in integrum

The principle of full restoration underlying compensatory damages; the claimant should be placed in the same position, so far as money can, as if the wrong had never happened.

Hadley v Baxendale

The foundational remoteness test in contract: recoverable losses are those arising naturally in the usual course of things or those within the parties' actual contemplation at the time of contracting.

Eggshell skull rule

The defendant takes the victim as found; an unusually susceptible claimant can recover the full extent of harm even if the precise vulnerability was unforeseeable, provided the type of damage was foreseeable.

Mitigation of loss

The claimant must take reasonable steps to reduce the loss caused by the breach; losses that could reasonably have been avoided are not recoverable, but the claimant need not act heroically.

Contributory negligence

A defence that reduces damages in proportion to the claimant's own share of responsibility for the harm; in contract it applies only where a concurrent tort duty exists.

Non-pecuniary loss

Damages for pain, suffering, and loss of amenity, recoverable in tort and in contract only where the contract's object was to provide enjoyment, relaxation, or peace of mind.

Liquidated damages clause

A contractual provision fixing the sum payable on breach; enforceable if it is a genuine pre-estimate of loss, but void as a penalty if it is out of all proportion to legitimate interests.

Penalty clause

A clause imposing a detriment on breach that is extravagant or unconscionable relative to the innocent party's legitimate interest in performance; the court refuses to enforce it.

Specific performance

A discretionary equitable order compelling the defendant to perform the contract; refused where damages are adequate, where supervision is impractical, or where the claimant's conduct is inequitable.

Prohibitory injunction

An equitable order restraining the defendant from continuing or committing a wrongful act; it may be interlocutory or final and is discretionary, requiring the claimant to come with clean hands.

Mandatory injunction

An equitable order compelling the defendant to take positive steps to undo or prevent a wrong; granted more sparingly than prohibitory relief because of the burden it imposes.

Quia timet injunction

An injunction granted to prevent a threatened wrong before it occurs, where the claimant shows a strong probability of imminent infringement and that damages would be inadequate.

American Cyanamid test

The framework for interlocutory injunctions: a serious issue to be tried, then the balance of convenience, with a cross-undertaking in damages as a condition of the order.

Cross-undertaking in damages

A promise by the injunction applicant to compensate the defendant for losses caused by the order if the claim ultimately fails; a usual condition of interlocutory relief.

Rescission

An equitable remedy that unwinds a contract ab initio, restoring the parties to their pre-contract positions; barred by affirmation, lapse of time, third-party rights, or impossibility of restitution.

Rectification

An equitable remedy correcting a written instrument that fails to record the parties' common continuing intention; unavailable to improve a bad bargain or to rewrite a valid agreement.

Account of profits

A restitutionary remedy stripping the defendant of gains made from the wrong; common in breach of fiduciary duty and intellectual property infringement, rarely in ordinary breach of contract.

Declaration

A discretionary judicial statement of the parties' legal rights and obligations without coercive effect; it may be granted even where no other remedy is sought.

Laches

Unreasonable delay by a claimant that prejudices the defendant; a bar to equitable relief even where the statutory limitation period has not expired.

Claim in debt

A claim for a liquidated sum due under the contract, recoverable as of right without proof of loss, remoteness, or mitigation, unlike unliquidated damages.

Unjust enrichment

A restitutionary claim requiring an enrichment of the defendant at the claimant's expense with no juristic reason; defences include change of position and bona fide purchase.

Aggravated damages

Compensatory damages for mental distress or injury to feelings caused by the manner of the wrong, awarded where the defendant's conduct aggravated the harm suffered.

Exemplary damages

Punitive damages awarded to punish and deter oppressive, arbitrary, or calculated wrongdoing; rare and confined to limited categories of tortious conduct.

Nominal damages

A small or token sum awarded where a legal right has been infringed but no actual loss has been proved, marking the vindication of the right.

Limitation periods

Statutory time limits on bringing claims: generally six years for contract and tort, twelve for deeds, with a three-year knowledge-based period for personal injury and judicial discretion to extend.

Equitable set-off

A defence reducing the claimant's award by a cross-claim closely connected to the transaction, even if unliquidated, where it would be inequitable to allow the claim without deduction.

Loss of bargain

Damages placing the claimant in the position of having the contract performed, recoverable in full only where the contract has been terminated for repudiatory breach.

Reliance loss

Wasted expenditure incurred in reliance on the contract, recoverable where expectation profits are too speculative to assess and the expenditure was not wasted independently of the breach.

Loss of a chance

Damages for the lost opportunity of a benefit, recoverable where the chance was substantial rather than speculative, assessed by the probability of the benefit accruing.

Wrotham Park damages

A reasonable sum representing the price the defendant would have paid to release the right infringed, awarded where conventional compensatory loss is difficult to measure.

Cost of cure

Damages measured by the reasonable cost of repairing or replacing defective performance, capped at the diminution in value where the cure cost is disproportionate to the benefit.

Double recovery

The rule preventing a claimant from recovering more than the total loss suffered by claiming the same loss under multiple heads or against joint wrongdoers.