Form and Substance in Contract Damages

21 Pages Posted: 20 Nov 2019 Last revised: 13 Dec 2019

See all articles by David McLauchlan

David McLauchlan

Victoria University of Wellington - Faculty of Law

Date Written: November 18, 2019

Abstract

This article discusses the role of form and substance in the modern law of contract both generally and with specific reference to the law of damages for breach of contract and, in particular, the decisions of the United Kingdom Supreme Court in Swynson Ltd v Lowick Rose LLP [2017] UKSC 32 and Fulton Shipping Inc of Panama v Globalia Business Travel SAU (The New Flamenco) [2017] UKSC 43. Although it was probably true to say when Atiyah and Summers wrote in Form and Substance in Anglo-American Law over 30 years ago that ‘the English law of contractual damages continues to be treated by judges and writers as governed by highly formal rules’, it would be wrong to describe the reasoning employed by judges in modern times when explaining, refining, and applying these rules as highly formal. Particularly in appellate decisions, judicial reasoning is usually an amalgam of what the authors would describe as formal and substantive considerations. Indeed, the formal reason for supporting a decision may be preferred precisely because it provides the just or most convenient solution to the dispute, as in Swynson v Lowick Rose. In that case the Supreme Court overturned the decision of the majority of the Court of Appeal that denial of the damages claimed ‘would be a triumph of form over substance’, preferring the view of the dissenting judge who said that ‘the form here is the substance’. And, while the decision in The New Flamenco appears at first sight to rest on formal, arguably formalistic, reasoning, a closer reading reveals that substantive considerations influenced the outcome of the appeal.

Keywords: contract damages, Swynson Ltd v Lowick Rose LLP, Fulton Shipping Inc of Panama v Globalia Business Travel SAU (The New Flamenco)

JEL Classification: K12

Suggested Citation

McLauchlan, David, Form and Substance in Contract Damages (November 18, 2019). (2019) 70 NILQ 221; Victoria University of Wellington Legal Research Paper No. 122/2019. Available at SSRN: https://ssrn.com/abstract=3489542

David McLauchlan (Contact Author)

Victoria University of Wellington - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

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