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GAZETTE
JANUARY/FEBRUARY 1979
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_