Damages assessed by reference to a reasonable sum that a claimant could have charged the defendant for the relaxation of the infringed right, especially when awarded in circumstances where the claimant could not establish a traditional head of compensable loss, have attracted considerable debates, particularly relating to their theoretical underpinning. Despite statements by the courts that such an award is compensatory in nature, this view fails to gain general acceptance most likely due to the failure by the courts to clearly identify the claimant’s loss. Unconvinced with the compensatory account, the majority of academic writings on this topic focused instead on developing a restitutionary analysis. While approaching the issue in this manner has its benefits, it must not distract attention from the equally important task of developing a compensatory analysis. In particular, the limits of compensation become a live issue where the claimant’s restitutionary claim is denied due to the operation of a restitutionary defence …
Alvin W-L See, ‘Unlocking Wrotham Park damages: Lord Cairns’ Act and loss of the ability to sue for future infringements’, Conveyancer and Property Lawyer 2017 issue 5.