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ATTORNEY GENERAL V. BLAKE FACTS My Lords, George Blake is a notorious, self-confessed traitor. He was employed as a member of the security and intelligence services for 17 years, from 1944 to 1961. In 1951 he became an agent for the Soviet Union. He was sentenced to 42 years' imprisonment. This sentence reflected the extreme gravity of the harm brought about by his betrayal of secret information. In 1966 Blake escaped from Wormwood Scrubs prison and fled to Berlin and then to Moscow. He is still there, a fugitive from justice. In 1989 he wrote his autobiography. On 4 May 1989 Blake entered into a publishing contract with Jonathan Cape Ltd. He granted Jonathan Cape an exclusive right to publish the book in this country in return for royalties. Blake had not sought any prior authorisation from the Crown to disclose any of the information in the book relating to the Secret Intelligence Service. Jonathan Cape has, apparently, already paid Blake about PS60,000 under the publishing agreement. In practice that money is irrecoverable. A further substantial amount, in the region of PS90,000, remains payable. These proceedings concern this unpaid money. On 24 May 1991 the Attorney General commenced an action against Blake, with a view to ensuring he should not enjoy any further financial fruits from his treachery. The writ and statement of claim sought relief on a variety of grounds. On 16 August 1944 Blake signed an Official Secrets Act declaration. This declaration included an undertaking: "...I undertake not to divulge any official information gained by me as a result of my employment, either in the press or in book form. I also understand that these provisions apply not only during the period of service but also after employment has ceased." This undertaking was contractually binding. Had Blake not signed it he would not have been employed. By submitting his manuscript for publication without first obtaining clearance Blake committed a breach of this undertaking. The Court of Appeal suggested that the Crown might have a private law claim to "restitutionary damages for breach of contract", and invited submissions on this issue. HOLDING LORD NICHOLLS Departure from the loss principle - Property Cases
As with breaches of contract, so with tort, the general principle regarding assessment of damages is that they are compensatory for loss or injury. Damages are measured by the plaintiff's loss, not the defendant's gain. But the common law, pragmatic as ever, has long recognised that there are many commonplace situations where a strict application of this principle would not do justice between the parties. Then compensation for the wrong done to the plaintiff is measured by a different yardstick. A trespasser who enters another's land may cause the landowner no financial loss. In such a case damages are measured by the benefit received by the trespasser, namely, by his use of the land. In this type of case the damages recoverable will be, in short, the price a reasonable person would pay for the right of user. The same principle is applied to the wrongful detention of goods. An instance is the much cited decision of the Court of Appeal in Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd  2 QB 246, concerning portable switchboards. The Mediana  AC 113, 117, that if a person took away a chair from his room and kept it for 12 months, could anybody say you had a right to diminish the damages by showing that I did not usually sit in that chair, or that there were plenty of other chairs in the room? To the same effect was Lord Shaw's telling example in Watson, Laidlaw & Co Ltd v Pott, Cassels and Williamson (1914) 31 RPC 104, 119. It bears repetition: "If A, being a liveryman, keeps his horse standing idle in the stable, and B, against his wish or without his knowledge, rides or drives it out, it is no answer to A for B to say: 'Against what loss do you want to be restored? I restore the horse. There is no loss. The horse is none the worse; it is the better for the exercise." Equity - Breach of Fiduciary Duty and Breach of Trust Whether this justification for ordering an account of profits holds good factually in every case must be doubtful. Be that as it may, in these types of case equity considered that the appropriate response to the violation of the plaintiff's right was that the defendant should surrender all his gains, and that he should do so irrespective of whether the violation had caused the plaintiff any financially measurable loss. Gains were to be disgorged even though they could not be shown to correspond with any disadvantage suffered by the other party. Considered as a matter of principle, it is difficult to see why equity required the wrongdoer to account for all his profits in these cases, whereas the common law's response was to require a wrongdoer merely to pay a reasonable fee for use of another's land or goods. In all these cases rights of property were infringed. This
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