Template:Adequacy of damages

Equitable remedies: when damages ain’t enough

You may be asked to acknowledge that the potential consequences of breach of contract are so severe that ordinary contractual damages might not be adequate and equitable relief might be the only means of protecting your counterparty’s position.

Now the law of equity is the cuddly yin to the the common law’s nasty, brutish and short yang. The common law trucks only in money. Equity offers Injunctions, dawn raids, Anton Piller orders and so on. Whatever — ah — floats your boat.

So why does this fellow want your acknowledgement that contractual damages might not be enough? Notionally, this is by way of excuse pre-loading so when this poor sainted victim throws herself at the whim of the courts of chancery seeking orders for a dawn raid, it can point to M’lud (or at the defendant) and say, “You see, your honour? That rascal knew perfectly well I might need an injunction here.”

It falls to us to consider when the situation might arise that damages are not an adequate remedy. Not all that often, in this old buzzard’s opinion.Contractual damages generally compensate for actual loss, not to account for profits. If you can say you’ve suffered any loss from, say, disclosure of client lists, it will be consequential in nature, sufficiently speculative that courts are traditionally reluctant to award it, also presenting as it does uncomfortable questions as to causation: Was the reason you lost all that business to a competitor because your client list was disclosed, or because your product was crap?