The Gazette 1979

JANUARY/FEBRUARY 1979

GAZETTE

loss of enjoyment when these are within the presumed contemplation of the parties as likely to result from the breach of contract. That would usually be the case in contracts to provide entertainment or enjoyment but there is no reason why it should not also be the case in other types of contract where the parties can foresee that enjoyment or convenience is likely to be an important benefit to be obtained by one party from the due performance of the contract." Substantially the same principles were applied by Mr. Justice Finlay in Quinn's case (Supra). Mr. Justice Costello quoted two further cases showing the application of and the limitations on this principle. In Heywood v Wellers 11976] 1. Q.B. 446 a female Plaintiff sued in person her former solicitor who had failed to properly prosecute injunction proceedings against a former man-friend. This Plaintiff claimed damages for the mental distress she had suffered both through the Solicitor failing to prosecute the injunction proceedings and through having to bring proceedings against him in person. She was awarded damages on the first claim as being mental distress being a direct and inevitable consequence where the Solicitor's failure to obtain the very relief which was the sole purpose of the litigation to secure but failed on the second heading as it was held to be merely an incidental consequence of the misconduct of litigation by the Solicitor. In Cox v Phillips Industries Limited [1976] 1 WLR. 639 an employee who had been relegated to a position of less importance by his employers in breach of contract had been awarded £500 damages for the distress that he suffered thereby. 3. When premises are damaged or destroyed should damages be measured by reference to cost of restoring them or by reference to the diminution in their value? In this regard Mr. Justice Costello quoted the case of Munnelly v Calcon Limited and Ors. (5th May 1978) where a Plaintiff who carried on an auctioneering business on the ground floor of premises in Aungier Street had sued the Defendant Contractors for re-instatement of the premises which had been irretrievably damaged by their works on a new building on an adjoining site. Re- instatement costs were £65,000 and the pre-damage market value of the premises was £35,000. The Supreme Court reversed the decision of the High Court that he was entitled to damages on the basis of reinstatement and awarded damages on the diminution-in-value basis. The court applied the principle of restitutio in integrum in that the Plaintiff would be justly treated if he received damages on a diminution-in-value basis which would be sufficient to establish him in similar premises to his Aungier Street premises on the South side of the city which would be equally suitable for his business and that an award of damages based on re-instatement costs would constitute unjust enrichment. * —•«Uo also minted a rlpricirm nf Mr

damages were limited to the cost of remedial and safety work the cost of removing debris and a small sum for damaged trade fixtures as damages simply based on diminishing value would not have been sufficient even to clear the site. 4. Are damages to be restricted to actual loss or can they be assessed by reference to any profit made by the wrong-doer? In this regard Mr. Justice Costello quoted from the case of Hickey & Co. Limited v Roches Stores Limited (Dublin) (4th July 1976). In this case the Plaintiffs claimed that the Defendants had, upon terminating an agreement whereby the Plaintiffs traded in fabrics on the Defendants' premises, in breach of that agreement, themselves traded in fabrics six months after the termination of that agreement. The Plaintiffs claim inter alia the unjust profit which the Defendants had made from the sale of fabrics in that time. Although refusing damages under this heading on the grounds that no mala fides was present on the part of the Defendant the Judge did assess damages based upon the loss the Palintiffs had suffered at the time when they were selling fabrics in the same area as the Defendants against the competition which had the benefit of goodwill which had been built up during the period of the agreement. BOOK REVIEWS MORE REMINISCENCES Under the Wigs by Sydney Aylett. London: Eyre Methuen. £5.50 nett. Reminiscences of English legal figures have a popularity with lay readers equatting with that of the "courtroom dramas" of televison. Sydney Aylett's recollections of 58 years as clerk in Chambers — principal clerk for half that time — in the Temple, however, has a somewhat limited appeal and the sub-title of the book "the Memoirs of a Legal Kingmaker" is somewhat irritating. Mr. Aylett served with many well-known barristers, among them Kenneth (later Lord) Diplock, Quentin Hogg (later Lord Chancellor), Maurice Drake and Theobold Matthew (clearly his hero) and others. Undoubtedly proud of the men associated with his Chambers, he has satisfied his urge to chronicle his long experience with them, but the information-entertainment level of "Under the Wigs" is modest for Irish readers. M. S. BOOKS RECEIVED 1. Hoath, David C. Council Housing. London: Sweet & _.Ma*wpll .1978. (Modern Leeal Studies). £2.50 net_