Calculating Damages: Inflation and Interest1

AuthorPhilip Davies,Peter Russell
DOIhttp://doi.org/10.1111/j.1468-2230.1979.tb01516.x
Publication Date01 January 1979
98
THE
MODERN
LAW REVIEW
[Vol.
42
followed by a reasonable )time thereafter for dissemination
of
its
contents, or the availability of the lift through marketing together
with the publication
of
the spwification. can be offered as possible
explanations. A determination
of
which party’s acts led
to
the
destruction
of
confidence becomes important in assessing appro-
priate relief.
If
it
was the dofendant’s unauthorised use, it is
irrelevant that the plaintiff, as in the present case, gave the
information to the defendant witrh the intention that the latter
commercially exploit
it.
As
to
the assessment
of
damages
as
a remedy for breach
of
confidence,
it
is important to compensate the plaintiff only for a
misuse
of
confidential
information. When the defendant’s breach
results
in
the extinguishment
of
confidence there
seems
some merit
in
calculating damages as the Court
of
Appeal did
in
Seuger
v.
Copydex
Lrd.
(No.
2)’@
by analogy to damages in conversion,
i.e.
the market value
of
the .willing buyer and seller.so In the
Hurrison
case, where
it
appears the defendant’s acts may have
led to the destruction
of
confidentiality, damages assessed on
suoh
a basis would be appropriate. However, where the plaintiff, unlike
Mr. Harrison, intends personally to manufacture goods employing
the confidential information, such a remedy requires modi’fication.
Perhaps,
as
some would welcome, breach
of
confidence is develop-
ing into a tort.31 “Tlhe essence
of
the duty seems more likely
to
be
that of not using without paying, rather than not using at all.”
sa
The judgment in
Harrison
v.
Project
&
Design
Co.
(Redcar) Ltd.
seems
to
support this proposition.
But
whatever the proper juris-
dictional basis
of
the right, it
is
important
to
recognise what the
law is endeavouring to protect and provide a remedy commensurate
with that goal.
It
is
submitted the recent clarification
of
t’he
spring-board doctrine has done just that.
W.
J.
BRAITHWAITE.
CALCULATING
DAMAGES:
INFLATION
AND
INTEREST
l
THE
basis for the calculation of damages in fatal accident cases
is
simplicity itself. In dealing with an ordinary working man the court
awards to his dependants the capital sum which would be required
to
purchase an annuity equal to the annual benefit which the
29
[1969]
2
All
E.R.
718,
720.
90
“Once a lump sum
Is
assessed and paid, then the conlldentlal information
would belong to the defendant company in the same way as if they had bought
and paid for it by an agreement
of
sale. The property
so
far as there
IS
property in it, would vest in them.
.
. .
If it
is
patentable,
they
would be entitled
to the benefit of the patent as if they had bought it.” Ibid.
per
Lord Den;!ng.
31
Sec P.
M.
North,
‘I
Breach
of
Confidence:
Is
there a New Tort?
(1972)
12
J.S.P.T.L.
149;
also
proposal in U.K. Law Reform Commission, Working Paper
No.
58,
Breach of Confldencc
(H.M.S.O.
1974).
52
COCO
v.
A.
N.
Clark
(Eng.).
Ltd.
[1969]
R.P.C.
41,
50
per
Megarry
J.
But,
[I] t may be that in flelds other than industry and commerce (and
I
!ave in mind
thc
Argyll
case) the duty may exist In the more stringent form,
.
.
.
1
Cooksoti
v.
Ktzoivles
I19781
2
All
E.R.
604.
Ibid.

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