CL-2022-000367 - [2025] EWHC 2877 (Comm)

The essence of the law on mitigation is familiar from the summary formulated by Viscount Haldane LC in British Westinghouse Co v Underground Ry [1912] A.C. 673, 689:

“The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second, which imposes on a claimant the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps.”

This principle applies to damages claimed in deceit just as it does any other claim to damages: Smith New Court Securities Ltd v Citibank NA [1997] A.C. 254.

Mr Bonnier submitted that CVS failed to mitigate its loss by not accepting the Mirador Offer. The Claimants said that they acted reasonably in not acting on the alleged Mirador Offer, and disputed that the offer was genuine.

It is well-established that mitigation is a positive case that must be pleaded and proved by the Defendant: McGregor on Damages (22^nd ed), §10-020. Here, the Defendants have adduced no evidence whatsoever to show that the offer was genuine. In particular, their disclosure contains no documentary evidence of exchanges or negotiations with Mirador or anyone acting on behalf of Mirador in relation to Mirador offer. It is inconceivable that there would have been no exchanges between the Defendant and Mirador, or internal exchanges referring to Mirador’s interest, if the offer had been genuine.

Furthermore, CVS was entitled to be sceptical about bare, unsupported assertions from the Defendants to the effect that a wealthy third party wanted to invest in Aaqua or AAA, given Mr Bonnier’s track history in this regard.

I therefore reject the Defendants’ case that CVS failed to mitigate its losses.