The operation of the remedies for breach of the equitable duty of confidence are confused, largely because of a recent tendency to treat the action as a tort, with a consequent lack of emphasis of the equitable origins of the action for breach of confidence. This paper places the action and the available remedies in its equitable context. It surveys the operation of the pecuniary remedies which are available, with particular reference to negotiating damages and breach of confidence. Principles are identified to determine when each remedy should be available, including two fundamental principles of but for causation and conscience. The paper also considers whether profits made from breach of confidence should be held on constructive trust. Whilst it is argued that it is now time to recognise a principled remedial constructive trust in English law, the role of such a trust as a remedy for breach of confidence is likely to be very limited.
The book provides a succinct, clear and accessible explanation of key theories and terminology in equitable and trust law and demonstrates how these are applied in practice with simple, topical examples. Bryan from University Melbourne, Vann from Monash.
The Model Rules of Professional Conduct provides an up-to-date resource for information on legal ethics. Federal, state and local courts in all jurisdictions look to the Rules for guidance in solving lawyer malpractice cases, disciplinary actions, disqualification issues, sanctions questions and much more. In this volume, black-letter Rules of Professional Conduct are followed by numbered Comments that explain each Rule's purpose and provide suggestions for its practical application. The Rules will help you identify proper conduct in a variety of given situations, review those instances where discretionary action is possible, and define the nature of the relationship between you and your clients, colleagues and the courts.
In August 2006 the third Australian Obligations Conference was hosted in Brisbane by the TC Beirne School of Law. The theme of the Conference was “Justifying Private Law Remedies”. This book contains a number of the papers delivered at that Conference, presented under several categories but all dealing with the fundamental issue of justification: General Concepts; Performance; Compensation; Punishment; and Restitution and Disgorgement. The authors are largely drawn from the legal academy, and include Canadian, Australian, British and New Zealand scholars. The collection will be of interest to all those concerned with the role, nature and place of remedies in the private law of the common law world.
p.p1 {margin: 0.0px 0.0px 0.0px 0.0px; font: 10.0px Arial} This Research Handbook comprehensively and authoritatively reviews the contemporary challenges in research regarding remedies in private law. The Research Handbook on Remedies in Private Law focuses on the most important issues throughout contract, equity, restitution and tort law as they have arisen in the major common law jurisdictions, touching upon those of other jurisdictions where pertinent.
The law of commercial remedies raises a number of important doctrinal, theoretical and practical controversies which deserve sustained and rigorous examination. This volume explores such controversies and suggests solutions, which is essential to ensure that the law is defensible, clear and just. With contributions from twenty-three leading academic and practitioner experts, this book addresses significant issues in the law which, taken together, range across the entire remedial jurisdiction as it applies to commercial disputes. The book primarily focuses on the resolution of controversies in the English law of commercial remedies, but recent developments elsewhere are also considered, especially in other common law jurisdictions. The result provides remarkably comprehensive coverage of the field which will be of relevance to academics, students, judges and practitioners.
This collection contributes to a fundamentally important set of debates about the nature of private law. The essays consider whether private law should be seen as having goals and, if so, whether those goals are particular to private as opposed to public law. They consider the legitimacy of the pursuit of community welfare goals in private law and the place of instrumentalist thinking in private law scholarship. They explore the relationship between the pursuit of policy goals and the other influences that shape private law, such as the formal values of certainty, consistency and coherence and the need to do justice to the parties to particular disputes. The collection analyses the role that particular policy goals do and should play in particular private law doctrines, and contributes to debate about the relationship between community welfare goals and considerations of interpersonal morality arising from the interactions between individuals. The contributors are drawn from across the common law world and offer a diverse range of perspectives on the controversies under consideration.
Disgorgement of profits is not exactly a household word in private law. Particularly in civil law jurisdictions – as opposed to those of the common law – the notion is not well known. What does it stand for? It is best illustrated by examples. One of the best known being the British case of Blake v Attorney General, [2001] 1 AC 268. In which a double spy had been imprisoned by the UK government before escaping and settling in the former Soviet Union. While there wrote a book on his experiences, upon which the UK government claimed the proceeds of the book. The House of Lords, as it then was, allowed the claim on the basis of Blake’s breach of his employment contract. Other examples are the infringement of intellectual property rights, where the damages of the owner are limited, but the profits of the wrongdoer immense. In such cases, the question arises whether the infringing party should be disgorged of his profits. This volume aims at establishing the notion of disgorgement of profits as a keyword in the discourse of private law. It does not purport to answer the question whether or not such damages should or should not be awarded. It does however aim to contribute to the discussion, the arguments in favour and against, and the organisation of the various actions.
The fourth edition of The Principles of the Law of Restitution brings this widely cited and influential volume fully up to date. Substantially rewritten to reflect significant changes in the law of restitution and the expansion in the theoretical and critical commentary on the subject, this book is grounded in its clarity of exposition and analysis. The new edition significantly expands existing chapters on the treatment of the history of unjust enrichment, enrichment, the treatment of legally effective bases for receipt, and compulsion. It further expands existing parts on restitution for wrongs and proprietary restitutionary claims as well as offering completely new chapters dealing with 'at the claimant's expense', 'absence of intent', and the defence of illegality. Focusing primarily on English law, the volume also engages with the law in other common law jurisdictions, notably Australia, Canada, New Zealand, and Singapore. It provides a clear exposition of complex areas of law as well as critical analysis of that law. Timely and comprehensive, this book provides readers with a crucial guide to the law of restitution and will continue to be invaluable to student, academics, and practitioners alike.
This paper considers why awards of gain-based relief for breach of privacy are uncommon. There are three reasons for this. First, there are arguably two possible measures of gain-based relief: the reasonable fee and the account of profits. In relation to the latter, the account of profits is a personal remedy, but the proprietary constructive trust can also sometimes be used to achieve a similar result. Second, there is uncertainty about the nature of the cause of action, particularly in Australia. The availability of specific kinds of gain-based relief has generally been predicated on the historical origin of the particular cause of action. Unfortunately, the categorisation of breach of privacy is uncertain, and it has been seen both as a tort and as a species of equitable breach of confidence. This has ramifications for the availability of remedies, particularly in Australia. The equitable remedy of account of profits is more likely to be awarded for equitable causes of action, and only exceptionally for common law causes of action, if at all. By contrast, reasonable fee awards are more likely to be available for certain torts. Thirdly, accounts of profits are generally unwieldy and difficult to calculate, and courts find it difficult to apportion profits to the breach.It is suggested that the remedies available for breach of privacy should be uncoupled from the debates about historical origin. Instead the focus should be upon the normative basis of the cause of action (whether it is conceived of as equitable or tortious, or as a mixture of both), as this will determine what remedies should be available. It will be suggested that accounts of profit should be available for breach of privacy, but only exceptionally, where compensatory damages are inadequate, an injunction is unavailable, the defendant's breach was advertent and the defendant made a profit. Moreover the difficulties of calculation mentioned above should be dealt with by reversing the burden of proof, and requiring the defendant to show that any net profit was not attributable to the breach. By contrast, it will be argued that reasonable fee awards should not be made, and nor should Lord Cairns' Act be used (even in a beneficent interpretation) to enable gain-based awards.
