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Vol 22 No 4 April/May 2017

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Whistleblowing: Law and Practice

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Gain-based Damages: Contract, Tort, Equity and Intellectual Property

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ISBN13: 9781841133348
ISBN: 1841133345
Published: April 2002
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £65.00

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This text considers the nature of gain-based damages and explains when they have historically been available and why, and provides a framework for appreciating the operation of such damages awards. The first part of the book justifies the existence of these damages, which focus upon a defendant wrongdoer's gain made as a result of a civil wrong, explaining the nature and need for such a remedy and the scope of civil wrongs.

The core thesis of the book is that two different forms of such gain-based damages exist: the first is concerned with restitution of a defendant's gains wrongfully transferred from a claimant; the second is concerned only with stripping profits from the defendant's hands. The two different awards are based on different rationales. The second part of the book considers and applies this approach, demonstrating its operation throughout the cases of civil wrongs. The operation of the two forms is demonstrated in cases in the areas of tort, contract, equitable wrongs and intellectual property wrongs.

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Remedies and Damages, Restitution
Introduction. The nature of ""damages"": damages as compensation - arguments that damages must be compensatory, counter-arguments; legitimacy of exemplary damages - their purpose, their operation, answering objections; beyond exemplary damages. The category of civil wrongs: wrongs at common law and in equity - the meaning of ""tort"", civil wrongs and criminal wrongs; the nature of a wrong - the conduct relied upon as a breach of duty, distinguishing wrongs from other events, identifying wrongs. Two measures of gain-based damages: restitutionary damages and disgorgement damages - restitutionary damages, disgorgement damages, other uses of ""disgorgement"" and ""restitution""; the need to distinguish restitutionary damages and disgorgement damages - different rationales and availability, when both remedies are concurrently available, confusion without the use of two terms; distinguishing gain-based damages from other awards; remoteness of damages. Torts: restitutionary damages - different labels, indebitatus assumpsit, explicit modern recognition in six cases, obstacles; disgorgement damages - different labels, obstacles. Breach of contract: disgorgement damages - the Blake litigation, objections; restitutionary damages - the meaning of restitutionary damages; restitutionary damages in the Blake case, restitutionary damages in the United States, restitutionary damages distinguished from other remedies, objections to restitutionary damages; other breaches of promise. Equitable wrongs: the equitable wrongs - breach of trust and fiduciary duty, dishonest participation in a breach of fiduciary duty, breach of confidence, fraud; restitutionary damages - breach of fiduciary duty, dishonest participation in breach of fiduciary duty, breach of confidence, fraud; disgorgement damages - breach of fiduciary duty, dishonest participation in a breach of fiduciary duty, breach of confidence, fraud. Intellectual property wrongs: history of the different intellectual property wrongs - copyright and design infringement, passing off and trade mark infringement, patent infringement; restitutionary damages - infringement of copyright and design rights, passing off and trade mark infringement, patent infringement; restitutionary damages for innocent infringement - copyright and design right infringements, patent infringement, passing off and trade mark infringement; disgorgement damages - generally, copyright and design infringement passing off and trade mark infringement, infringement of patent. Conclusions: election - the governing principle, disgorgement damages and restitutionary damages, disgorgement damages and compensatory damages, restitutionary damages and compensatory damages, exemplary damages; proprietary claims - the problem, two types of gain-based proprietary awards, a principle governing the award of both gain-based proprietary awards?.