(G) BREACH OF STATUTORY DUTY

In Devenish Nutrition Ltd v Sanofi-Aventis SA^{[1] [2]} the Court of Appeal recognized that a gain-based remedy was not available for the tort of breach of statutory duty, in that case arising from infringement of competition law whereby the claimant had purchased vitamins from the defendants at inflated prices as a result of an unlawful cartel agreement between the suppliers. The rejection of gain-based remedies in such circumstances was for two reasons. First, the Court considered itself to be bound by its earlier decision in Stoke- on-Trent CC v W and J Wass Ltd,¹⁴⁰ which was interpreted as recognizing that gain-based awards are not available for non-proprietary torts. Secondly, because compensatory damages remained an adequate remedy, even though the claimant had passed on its loss to customers and so would not have been able to claim compensatory damages.^[3] Neither reason is convincing. Wass did not decide that gain-based remedies were unavailable to non-proprietary torts. Even if it did, surely the tort committed in Devenish was sufficiently proprietary, for the effect of the breach of statutory duty was that the claimant paid its money to the defendants who had consequently interfered with the claimant’s enjoyment of its property. Further, Wass was decided before the House of Lords in Blake set the law on gain-based remedies on a new course and so, even if it did restrict gain- based remedies to torts involving the misappropriation of property, this should be reconsidered after Blake.

As regards the adequacy of compensatory damages reason, if the claimant has not suffered any loss, for example because the burden of the claimant’s overpayment to the defendants had been passed on to the claimant’s customers, compensatory damages are surely inadequate. It is then necessary to consider whether the case falls within the ‘exceptional’ category for the award of gain-based remedies, as recognized in Blake. In that case Lord Nicholls recognized that: ‘A useful general guide, although not exhaustive, is whether the plaintiff had a legitimate interest in preventing the defendant’s profitmaking activity and hence in depriving him of this profit.’¹⁴² In fact, there was no such legitimate interest in Devenish because there had already been a public action brought by the European Commission to identify an infringement of the competition rules and substantial fines had been imposed as a result. But a legitimate interest might be identified where there has been no prior public action, in order to encourage private parties to deploy additional resources to the task of identifying anti-competitive conduct which is of benefit to the community.

In fact, the claimant in Devenish might have pursued an alternative claim in unjust enrichment against the defendants who had been enriched at its expense as the result of a causative mistake as to the money which was lawfully due. The fact that the claimant had passed on its loss to its customers does not defeat such a claim,¹⁴³ although the fact that the money had been paid pursuant to a valid contract would be a more significant obstacle to an unjust enrichment claim, save if the additional payment could be severed from the amount which was properly due.^[4] It might alternatively have been possible to bring a claim for statutory restitution of the unlawful payment, by virtue of sections 47A and 58A of the Competition Act 1998, which provides for a pecuniary remedy to be awarded where there has been a breach of competition law, which includes the award of a gain-based

remedy.^{[5] [6]}

• [1] [2008] EWCA Civ 1086, [2009] Ch 390. See p 448, above.
• [2] [1988] 1 WLR 1406. See p 461, above. 141 See p 440, above. 142 [2001] 1 AC 268, 284-5.
• [3] 143 Kleinwort Benson Ltd v Birmingham CC [1977] QB 380.
• [4] Similar to the success of the restitutionary claim in Roxborough v Rothmans of Pall Mall Australia Ltd(2001) 76 ALJR 203. See p 138, above.
• [5] BCL Old Co Ltd v Aventis SA [2005] CAT 2, [28].
• [6] In United Australia Ltd v Barclays Bank Ltd [1941] AC 1,12, Viscount Simon LC suggested that the tortsof defamation and assault could not be ‘waived’.