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(B) WHEN MUST THE ELECTION BE MADE?

Although the normal time for election is by the time the judgment is given in the claimant’s favour and is being entered against the defendant,[1] this rule only applies where the claimant was in possession of all the necessary information to be able to make the election. As Lightman J recognized in Island Records Ltd v Tring International plc:[2]

a party should in general not be required to elect or be found to have elected between remedies unless and until he is able to make an informed choice. A right of election, if it is to be meaningful and not a mere gamble, must embrace the right to readily available information as to his likely entitlement in case of both the two alternative remedies.

A delay in making the election is more likely to be countenanced where the judgment is a default or summary judgment,[3] where the claimant may not have had sufficient information as to the profits made by the defendant when the judgment was given. But a delay will also be countenanced where, as occurred in Island Records, a split trial procedure is adopted, whereby the issues of liability and assessment of remedies are separated, with the second hearing only being held if the decision on liability is favourable to the claimant. Delay in exercising the right of election will not be countenanced, however, if the delay is unreasonable by prejudicing the defendant.1 1 But, where the delay is reasonable, the court will be prepared to defer entry of judgment for a reasonable time to allow the claimant to obtain the necessary information to make an informed election. The court will even be prepared to make discovery and other orders to provide the claimant with the necessary information.[4] [5]

  • [1] See United Australia Ltd v Barclays Bank Ltd [1941] AC 1, 19 (Viscount Simon LC).
  • [2] [1996] 1 WLR 1256, 1258. See also Warman International Ltd v Dwyer (1995) 182 CLR 544, 570.
  • [3] Tang Man Sit v Capacious Investments Ltd [1996] AC 514.
  • [4] Island Records Ltd v Tring International plc [1996] 1 WLR 1256, 1259 (Lightman J).
  • [5] Ibid. 153 [1996] AC 514.
 
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