The Extinguishing of Contract
| Published date | 01 September 2004 |
| Date | 01 September 2004 |
| DOI | http://doi.org/10.1111/j.1468-2230.2004.514_1.x |
CASES
The Extinguishing of Contract
David Campbell
n
INTRODUCTION
Though very similar to Wr o t h a m Pa r k E s t a t e C o L t d vParks id e Home s Ltd
1
and
decided on Wr o t h a m Pa r k ‘hypothetical releas e’ lines, Lane vO’Brien Homes
2
pre-
sents novel features which mark the latest stage in the progress of the restitution-
ary juggernaut which Wr o t h a m P a r k helped set in motion. As in Wr o t h a m P ar k ,
breach of a restrictive covenant caused the claimant no loss on the normal
compensatory principles of quanti¢cation of damages, and what we must now
regard as ‘restitutionary damages’
3
were awarded. As we shall see, Lane by no
means clari¢es the jurisprudence of these damages. It is nevertheless an important
case because it explicitly abandons the ‘great moderation’ in quanti¢cation dis-
played i n Wr o t h a m P a r k in order to give an unprecedentedly large award.What is
more, at least there was a covenant inWr o t h a m P a r k ,butinLane the existe nce of a
covenant was in serious dispute, and that leave to appeal the ¢nding of liability
was refused presents, with respe ct, aproblem, not a solution. For what Lane is but
the latest case to make clear is that the‘temptation to do justice’
4
by an award of
restitutionary damages which has received such impetus from A-G vBlak e
(Jonathan Cape Ltd Third Party)
5
is inconsistent with respect for the parties’
intentions. However,if they take the restitutionary attitude, courtswill have little
trouble ¢nding the liability which allows them surrender to this temptation,
notwithstanding that doing so involves the extinguishing ofcontract.
n
Department of Law, Universityof Durham. I am grateful to Donald Harris, SteveHedley, Bob Lee,
Jonathan Morgan,C hristopher McNalla nd PhilipWylie for their comments.
1 [1974] 1WLR 798; discussed in D.Harri s etal,Remediesin Contract andTort, 2nd edn (London: But-
terworths, 2001) 255^258, 488^491. Much of my thinking on the topic of this article has been
formed in the course of writing this joint workwith Donald Harris a nd Roger Halson.
2 [2004] EWHC 303 (QB). Unattributed references in square brackets are to this transcript. I am
grateful to Dr James Devenney for bringing this case to my early attention. It is an appeal from
the judgment of His Honour Judge Michael Kennedy QC given in the Brighton County Court
on 1November 2002. I amgrateful to Mr John Foxof Wannop and Fox, Solicitors, whoacted for
the defendant in Lane, forproviding me with a copyof the transcript of this judgment, which is not
available via the publicly accessible databases and has no neutral citation number. By courtesy of
Professor SteveHedley, it is availableat: http://www.ucc.ie/law/restitution/restitution.htm.
3McGregor on Damages,17thedn (London: Sweet and Maxwell, 2003) para 12.003.
4 N. Andrews,‘Civil Disgorgement of Wrongdoers’Gai ns:The Temptation to do Justice’ inW. R.
Cornish et al (eds), Restitution: Past, Present and Future(Oxford: Hart, 1998)ch 10.
rThe Modern LawReview Limited 2004
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2004) 67(5) MLR 818^843
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