Faustus Fotherby
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Yeh I'm doing a first year optional moot, not for a good reason, and I've come to actually write the damn thing and I get the feeling I'm missing something so I thought I'd check here to see if anyone's got any ideas on the problem.

(Original post by Moot Question)
Arthur Hastings inherited a large amount of money and planned to fulfil his lifelong dream of owning a luxurious home fitted out in the style of 1930s art deco.

He bought a flat in Charterhouse Mansions, a block of flats house built in London in 1930, but modernised in the 1960s. He contracted with Sunburst Design, a renovations company specialising in art deco work, to restore the flat to its original specifications. A full specification was agreed for the work, which was to cost £200,000.

When Sunburst Design finished the work, and had been paid, Hastings noticed that some of the work was not as he had specified. The kind of mahogany used for many of the fixed wall cabinets was not of the right kind, and was appreciably lighter in colour. This would cost £30,000 to remedy, but would not affect the value of the flat.

It transpired that the reason Sunburst Design used the lighter mahogany was that, although they had obtained mahogany of the correct colour, they had then sold it to a third party who paid a very high price, enabling the company to make a profit of £6000.

Hastings brought an action for damages against Sunburst Design for £30,000, the cost of having the mahogany replaced. He also brought an action for account of profits for the £6000 profit Sunburst Design made by deliberately reselling the mahogany they should have used in his flat.

In the County Court, Christie J held:

a) That the action for damages failed as the cost of replacing the mahogany was disproportionate to the benefit to be obtained and only represented Hastings’ lost consumer surplus. Hastings was instead awarded damages of £1000 for his loss of amenity.

b) No account of profits should be awarded as the circumstances of this case did not fall within the principles laid down by the House of Lords in AG v Blake. There was no ‘exceptional’ aspect about this case even taking into account developments in the law since Blakeand its apparent application in commercial situations.

Hastings appeals to the Court of Appeal against both of the above decisions.
Anyways I'm doing the second point (b) for the respondent and I've talked about how it's not really an 'exceptional case' and then mentioned some of the restrictions brought in by cases like Esso Petroleum v Niad and am about to look at Experience Hendrix LLC v PPX Enterprises but I can't help but feel I've missed the point.

I'm talking about the right stuff I know that, but it just seems to easy, most of the points and all the relevant sections of the major cases are picked out in the textbook I'm using and I kinda got the impression the moot would need a lot more independant research. I've done a few cursory searches on Westlaw for things like "Account of profits" in "contract law" and other similarly named terms but not really found all that much.

Anyone got any ideas? Thanks.
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jacketpotato
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OOOOooo an action for digorgement of profits, my favourite action

There's no trust here dude, he doesn't need to know anything about trusts

You simply need to have a fairly basic knowledge of what the requirements for this action are, which it sounds like you do. Essentially, you need to show very good reasons for the granting of such a remedy (such that the conscience of the defendant is bound? the precise basis for the action isn't totally clear - though I think that the basis is, indeed, the conscience of the defendant rather than the damage suffered by the claimant)

The point is that this is a very new area of law, and the cases are not totally consistent in their approach. Particularly as the moot is in the Court of Appeal, there is a lot of scope for you to make policy arguments as to how/wide narrow the action should be.

I have my doubts about whether a simple breach of contract counts. See Argyll Stores, a breach of contract is not in of itself a bad thing. Sometimes a breach of contract is a necessary fact of commercial life. I think these cases on damages generally are nearly as important as the cases specifically on disgorgement for your purposes. There is nothing inherently inequitable about a company breaching a contract, its how the world works. There's nothing unfair about a commercial enterprise seeking to make a profit, indeed its economically desirable. A company must be expected to breach contracts if it would allow them to get more money than the damages they would usually have to pay. The only reason for imposing an action for disgorgement here would be, essentially, that the company breached the contract in order to make a larger profit: this is not in of itself a bad thing and is in fact to be desired.
This case is therefore well outside Blake and following cases, and would be an extension to simple breaches of contract that should be resisted: its sometimes desirable that contracts are breached in commerce, as is the case here if someone needed the mahogany so badly they wanted to pay 6k for it.
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Faustus Fotherby
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Well trouble is I feel I should remain focused on the question which specifically orientates around the lack of the 'exceptional' aspect with regards to the tests laid out in Blake, I don't think I'm supposed to wander too far off topic though what do I know? :p:

Admittedly I went to a moot meeting earlier today and the guy was like "yehhhh you've gotta talk for, like, 10 minutes" and I was like "JESUS CHRIST?! 10 MINUTES?!" I honest have no idea how I'm going to fill all that time without just waffling aimlessly about my handful of points.

At the mo I'm trying to run a case just by taking Blake and it's successors and distinguishing them from the current case to maintain there is no 'exceptional circumstance' for the appellant to rely on.

The fact that the respondents breached to make a larger profit does not produce a case for 'exceptional circumstance' oddly enough (per Lord Nicholl in Blake), despite the fact they've been complete pricks about the original contract.
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jacketpotato
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(Original post by Faustus Fotherby)
Well trouble is I feel I should remain focused on the question which specifically orientates around the lack of the 'exceptional' aspect with regards to the tests laid out in Blake, I don't think I'm supposed to wander too far off topic though what do I know? :p:

Admittedly I went to a moot meeting earlier today and the guy was like "yehhhh you've gotta talk for, like, 10 minutes" and I was like "JESUS CHRIST?! 10 MINUTES?!" I honest have no idea how I'm going to fill all that time without just waffling aimlessly about my handful of points.

At the mo I'm trying to run a case just by taking Blake and it's successors and distinguishing them from the current case to maintain there is no 'exceptional circumstance' for the appellant to rely on.

The fact that the respondents breached to make a larger profit does not produce a case for 'exceptional circumstance' oddly enough (per Lord Nicholl in Blake), despite the fact they've been complete pricks about the original contract.
I don't think this is quite correct.

The point about an action for disgorgement of profits is that the extent of the remedy is unclear.

Noone actually knows what "exceptional" means. You certainly can't work it out just by looking at Blake. You simply can't deduce from the cases whether the circumstances in this case are exceptional or not.

The scope of the remedy is very unclear. Its important to recognise that to allow an action for disgorgement in this case would be an extension of the existing scope of the remedy. But its not an extension there is clear authority either against or in favour: Blake and the following cases won't provide you any guidance because they simply don't make the scope of the remedy clear.

So focusing yourself just on whether the facts fit the "exceptional" test laid out in Blake is a bit of a wild goose chase really, because noone really knows how far this test can be pushed or what "exceptional" really means: how far the law on this point stretches is a matter very much up for debate which very much involves policy judgments on the part of the judges who would be making law in a case like this.

Policy arguments are almost always useful in mooting because things are always unclear: thats why you are having a moot about it, so you need to deploy reasons as to which side of the line you fall on). But its particularly true for this moot, because the scope of the remedy is just so uncertain.
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TerryTerry
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Anticipate what the opposition will say and 'grasp the nettle'...don't let the other side bring it up first!
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Faustus Fotherby
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Thanks everyone for all the help you've given, I'm re-working bits of my moot argument right now on the grounds that I watched someone else's moot the other night and understood better what I was heading towards.

It was alarming watching the judge destroy their argument, so much so that I think neither side actually HAD an argument by the end. One of his more humorous quotes was because the appellants were claiming their client didn't want to look around to find another taxi service as it would have expended too much effort, so the judge goes "well couldn't he just have dialled 118... 118?" Yeh it was almost painful to watch.

Watching this has made me feel grossly underprepared but reading what you've all written has got me more focused on the kind of thing I've got to produce, so thanks again.

EDIT: I didn't feel what you said was waffle MelesMeles, though the example did help :p:
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vincenzo2020
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(Original post by Faustus Fotherby)
Thanks everyone for all the help you've given, I'm re-working bits of my moot argument right now on the grounds that I watched someone else's moot the other night and understood better what I was heading towards.

It was alarming watching the judge destroy their argument, so much so that I think neither side actually HAD an argument by the end. One of his more humorous quotes was because the appellants were claiming their client didn't want to look around to find another taxi service as it would have expended too much effort, so the judge goes "well couldn't he just have dialled 118... 118?" Yeh it was almost painful to watch.

Watching this has made me feel grossly underprepared but reading what you've all written has got me more focused on the kind of thing I've got to produce, so thanks again.

EDIT: I didn't feel what you said was waffle MelesMeles, though the example did help :p:

So B is restitutionary damages, what is section A then? I'm appallent counsel doing this exact example!
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Faustus Fotherby
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(Original post by elguiri)
So B is restitutionary damages, what is section A then? I'm appallent counsel doing this exact example!
Hah you know I was in first year (3 years ago now!) when I did this moot, and I've graduated now

Sorry I honestly can't remember what the details of this moot were (other than I did alright in it even though I felt like I was being destroyed)

Hopefully my post will bump the thread for you but you might want to just start a new thread if you're doing section A for the appellant side.
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vincenzo2020
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(Original post by Faustus Fotherby)
Hah you know I was in first year (3 years ago now!) when I did this moot, and I've graduated now

Sorry I honestly can't remember what the details of this moot were (other than I did alright in it even though I felt like I was being destroyed)

Hopefully my post will bump the thread for you but you might want to just start a new thread if you're doing section A for the appellant side.
I noticed the dates, I'm surprised you're still on TSR! But thanks nonetheless, I bet you must have been laughing your way out the moot room because the appellant arguments are non-existent!
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Faustus Fotherby
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(Original post by elguiri)
I noticed the dates, I'm surprised you're still on TSR! But thanks nonetheless, I bet you must have been laughing your way out the moot room because the appellant arguments are non-existent!
Yeh the defence don't have a hard time at all. From my point of view, (although I might just say this cos I did the research for this area), then my argument was the easiest of all 4. The appellant for section B - the opposing side to my bit - literally stood up, said a few lines then sat straight back down. I think it was partly because he hadn't researched it all that well cos I'm sure they wouldn't set a problem that didn't have a point of attack in some small way for the appellant but there didn't seem to be much for him to say either.

Urgh the only reason I did that moot was cos my friend really wanted to do one and I was like "eh might as well" - then I watched another moot and this girl getting DESTROYED and was like "WHAT HAVE I AGREED TO!?"

My argument got utterly ripped up in several places but I got a decent 2:1 for it so I didn't complain.
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BellaJames
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Hi)
Im junior respondent and i dont know what i have to talk about.Can you please help me??thank youuu!!
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hennypenny
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(Original post by BellaJames)
Hi)
Im junior respondent and i dont know what i have to talk about.Can you please help me??thank youuu!!
I am the junior respondent too, if you find any help/info can you please let me know?? lol. thanks!
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