Red Card For Penalty Damages
In 2001, a number of companies, including Sanofi-Aventis were
found guilty by the European Commission of participating in cartels
and collectively fined ?855.22 million.
During the existence of these cartels, Devenish, a Belfast-based
supplier of pig and poultry feed, purchased vitamins from
Sanofi-Aventis at prices which were artificially inflated as a
result of the cartel activity.
Following the European Commission's decision, Devenish
raised proceedings in England against Sanofi-Aventis seeking a
restitutionary award (a sum of money assessed by reference to the
gain which the wrongdoer has made as a result of the wrong) in
place of compensatory damages, which compensate the claimant for
loss suffered as a result of the wrongdoing. The argument submitted
on behalf of Devenish was that compensatory damages would not
provide an adequate remedy in the circumstances.
The sum sought by Devenish was the amount by which the prices it
was charged for vitamins exceeded the price that would lawfully
have been charged if there had been no cartel in existence.
A trial of preliminary issues was ordered in order to assess
whether Devenish were entitled to the following heads of
relief:-
An account of profits
Restitution of unjust enrichment
Exemplary damages
At first instance, the judge rejected Devenish's claims on
the above heads.
Devenish appealed. The Court of Appeal also rejected Devenish's
claims. The usual rule is that a Claimant is only entitled to
recover the loss that they have suffered as a result of a wrong
committed by a defendant. There are certain circumstances where a
claimant can recover more than the loss suffered, for example, to
penalise a defendant for wrongful conduct.
Alternatively, there are some circumstances where an account of
profits would be appropriate, for example, where a defendant has
wrongfully used the claimant's property and made a gain from
it.
In the particular circumstances of the claim here, Devenish
indicated that they would have some difficulty providing the loss
suffered as a result of the cartel's activity and that
compensatory damages would be an inadequate remedy.
The Court rejected Devenish's contentions. The Court did not
consider this case to be exceptional in any way and they did not
consider there to be any reason to depart from the usual rule that
a claimant can only recover the loss suffered by them as a result
of the wrongful conduct of the defendant.
Of particular significance here was the fact...
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