(iii) Lord Hobhouse’s Dissent
Lord Hobhouse rejected the approach of the majority for three reasons.[1] First, he considered the remedy of an account of profits, albeit a just response, to be motivated by a desire to punish Blake and to deprive him of the fruits of his earlier crime in circumstances where the profits were not obtained directly from the Crown. This is certainly true, but it is a consequence of recognizing a remedy which seeks to deprive the defendant of profits made as a result of committing the wrong. That is a fundamental principle of English law, the significance of which was down-played by Lord Hobhouse. Secondly, he could not see that there was a gap in the law which needed to be filled by the creation of a new remedy. But account of profits is not a new remedy, although its expansion to a non-proprietary Common Law claim founded on a breach of contract was certainly novel. Finally, he concluded that the remedy of an account of profits was based on protection of property rights and should not be awarded in a case such as Blake where no property rights had been affected by the breach of contract. Again, whilst it is clear that gain-based remedies are available where the profit has arisen from interference with property rights,[2] [3] there is no reason why the remedies should be confined to such a context.
