What has the Privy Council said about “Wrotham Park damages”?
(1) Damages awarded are intended to compensate the claimant for the court’s decision not to grant relief in the form of an order for specific performance or an injunction. (2) The court will award an amount of damages which represents the sum that the claimant might reasonably have demanded from the defendant as compensation for allowing it to breach the relevant contractual provision. The court assesses this by reference to a “hypothetical negotiation” carried out between the parties at the date of breach. (3) At the “hypothetical negotiation” both parties are assumed to act reasonably and the fact that the parties would never have reached a deal in reality is irrelevant. (4) Although these damages are awarded in place of relief e.g. an injunction, it is not a prerequisite to their being awarded that either (i) the claimant applied for the injunction in the case or (ii) there was any prospect of such application succeeding. In the Pell Frischmann case, point (3) was relevant because t
