Unlocking Wrotham Park Damages: Lord Cairns' Act and Loss of the Ability to Sue for Future Infringements

Abstract

This article argues that Wrotham Park damages, if it is to be preserved as a term of art, is best understood as compensating the claimant for losing the ability to sue for future infringements. The claimant’s loss, which is prospective in nature, arises because the court, in exercise of the jurisdiction conferred by Lord Cairns’ Act, decides to award damages in lieu of an injunction as a means of achieving finality in the settlement of the dispute. The damages award is both the source of and the remedy for the loss. The recent attempts at expanding the availability of the remedy while ignoring this explanation have not only deprived the remedy of an underlying rationale but also opened the door to its indiscriminate award.

Keywords: Wrotham Park Damages; Licence Fee Damages; Hypothetical Bargain Damages