HC-2013-000089 - [2025] EWHC 2376 (Ch)

Whatever the appropriate basis for the assessment of damages in this case, it was common ground that the court cannot in the circumstances of this case expect to be able to quantify the damages with precision, but should instead approach the assessment of damages with “the exercise of a sound imagination and the practice of the broad axe” (as per the comments of Lord Shaw in Watson, Laidlaw & Co, pp. 29–30). I summarised the general principles in that regard in my judgment in Anan Kasei v Neo [2022] EWHC 708 (Ch), [2022] FSR 21, §85, as follows:

“(i)

The assessment of what would have happened in the counterfactual case is not a matter susceptible of precise estimation: “one cannot expect much in the way of accuracy when the court is asked to re-write history”: Gerber v Lectra [1995] RPC 383, 395.

(ii)

The court’s task is therefore to do the best it can with the material available to it: General Tire and Rubber Company v Firestone Tyre and Rubber Company [1975] WLR 819, 826; Original Beauty Technology v G4K Fashion [2021] EWHC 3439 (Ch), §75.

(iii)

Where the defendant’s wrongdoing has created uncertainties, those should where necessary be resolved by making assumptions generous to the claimant: Gary Fearns v Anglo-Dutch Paint [2010] EWHC 1708 (Ch), §70. Green LJ commented to similar effect in NTN Corp v Stellantis [2022] EWCA Civ 16, §26 that where a claimant has a justiciable right the procedural and evidential rules governing the enforcement of that right should not be so onerous that it makes the right too hard to vindicate.

(iv)

The court should also have regard to the extent to which it was in the power of one or other party to produce evidence on a particular point: see the principle stated by Lord Mansfield in Blatch v Archer (1775) 1 Cowp 63, 65, cited with approval by Lord Bingham in Fairchild v Glenhaven [2002] UKHL 22, [2003] 1 AC 32, §13.”

The application of those principles should not, however, lead the court to adopt a valuation which is pure speculation, without any evidential support: see Arnold LJ on appeal in Anan Kasei v Neo [2023] EWCA Civ 11, [2023] FSR 14, §124.