THE RELATIONSHIP BETWEEN GAIN-BASED AND COMPENSATORY REMEDIES FOR WRONGDOING

(A) ELECTION BETWEEN INCONSISTENT REMEDIES

Sometimes the claimant will be able to claim a compensatory remedy as well as a gain- based remedy for the same wrong. In such cases it is a fundamental principle of the law of remedies that the claimant is not able to recover both types of remedy to the extent that they are inconsistent.[1] Where the remedies are inconsistent with each other the claimant must elect between them. Once the claimant has made this election, any claim to the other remedy which was not chosen is lost forever.[2] Although the cases use the language of inconsistency of remedy, in reality the real concern is to ensure that the claimant does not accumulate remedies excessively.[3]

  • [1] Sutherland v Caxton [1936] Ch 323, 336 (Farwell J); Mahesan s/o Thambiah v Malaysia GovernmentOfficers’ Co-operative Housing Society Ltd [1979] AC 374; Island Records Ltd v Tring International plc [1996]1 WLR 1256, 1258 (Lightman J); Tang Man Sit v Capacious Investments Ltd [1996] AC 514, 521.
  • [2] United Australia Ltd v Barclays Bank Ltd [1941] AC 1. See also Island Records Ltd v Tring Internationalplc [1996] 1 WLR 1256, 1258 (Lightman J).
  • [3] See S Watterson, ‘Alternative and Cumulative Remedies: What is the Difference?’ [2003] RLR 7, whoconcludes that there should be no need for election between remedies; it being sufficient that the claimantis prohibited from accumulating remedies which exceed the minimum necessary to realize the aim of eachremedy. See also S Watterson, ‘An Account of Profits or Damages? The History of Orthodoxy’ (2004)OJLS 471.
 
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