1 [2003] EWCA Civ 323. Unattributed references in square brackets are to this transcript.

2 [1997] Ch. 84 (Ch.D.); [1998] Ch. 439 (C.A.) and [2001] 1 A.C. 268 (H.L.).

3 Ibid., 299D-E (H.L.).

4 Unreported, 22 November 2001 (Ch.D.). In C.M.S. Dolphin Ltd. v. Paul Maurice Simonet, Blue (G.B.) Ltd. [2001] Emp LR 895, in which judgment was given some six months earlier than Esso v. NIAD, Lawrence Collins J. (at para. [142]) was prepared to award an account on the authority of Blake but did not find it necessary to do so.

5 See note 46 below.

6 See section 6 below.

7 Harris, D. et al., Remedies in Contract and Tort, 2nd. edn. (London 2002), p. 267. Much of Campbell's thinking on this topic has been formed in the course of joint work with Donald Harris and Roger Halson.

8 Experience Hendrix LLC v. PPX Enterprises Inc., Edward Chalpin [2002] EWHC 1353 (Q.B.).

9 Ibid., at para. [49].

10 Ibid; see further pp. 612-613 below.

11 Ibid..

12 A.-G. v. Guardian Newspapers (No. 2) [1990] 1 A.C. 109, 286.

13 Chancery Amendment Act 1858, s. 2 (now Supreme Court Act 1981, s. 50).

14 [1974] 1 W.L.R. 798.

15 Harris et al., note 7 above, pp. 255-258, 488-491.

16 [1995] 1 W.L.R. 269.

17 Harris et al., note 7 above, 255-262.

18 Wrotham Park Estate Co. Ltd. v. Parkside Homes [1974] 1 W.L.R. 798, 815-816.

19 My Kinda Town v. Soll [1983] R.P.C. 15, 55.

20 The felicitous term “sliding scale” is used by Professor Burrows in comments on the Restitution Discussion Group email forum: (enrichment@lists.mcgill.ca).

21 Harris et al., note 7 above, pp. 261-262.

22 Burrows, A. and Peel, E. (eds.), Commercial Remedies (Oxford 2003), p. 12910.1093/oso/9780199264650.003.0012.

23 See section 4 below.

24 The various distinctions which have been drawn between “restitution” and “disgorgement” (e.g. Smith, L.D., “The Province of the Law of Restitution” (1992) 71 Can. B. Rev. 672, 683–694; Jaffey, P., The Nature and Scope of Restitution (Oxford 2002) chs. 4, 11-13; and Edelman, J., Gain-based Damages (Oxford 2002), ch. 3) also now disappear, in theory at least, into the unified sliding scale, for in the light of Blake they now appear to be mere staging posts on the progress towards the creation of that scale, in which unjust enrichment itself disappears into the category of wrongs: Birks, P., “Unjust Enrichment and Wrongful Enrichment” (2001) 79 Texas L. Rev. 1767. The “sliding scale” thinking is applied to a critique of Edelman in Burrows, A., The Law of Restitution, 2nd. edn. (London 2002), pp. 461462.

25 A.-G. v. Blake (Jonathan Cape Ltd. Third Party) [1998] Ch. 439, 456E (C.A.) and [2001] 1 A.C. 268, 282B (H.L.).

26 Ibid., 291F (H.L.).

27 Ibid., 285G.

28 Ibid., 456H (C.A).

29 Ibid., 457-458.

30 Harris et al, note 7 above, pp. 18-19, 213-214, 274-275, 200-208, 275-276.

31 A.-G. v. Blake (Jonathan Cape Ltd. Third Party) [2001] 1 A.C. 268, 277G, 291D (H.L.).

32 That the defendant “did the very thing it contracted not to do” was decisive in Esso Petroleum Co. Ltd. v. NIAD Ltd., unreported, 22 November 2001 (Ch.D.), at [60].

33 This was predicted in D. Campbell and D. Harris, “In Defence of Breach: A Critique of Restitution and the Performance Interest” (2002) 22 L.S. 208, 228 n. 109.

34 A.-G. v. Blake (Jonathan Cape Ltd. Third Party) [2001] 1 A.C. 268, 285G-H (H.L.).

35 Ibid, 283H-284A.

36 This difficulty was predicted in Harris et al., note 7 above, p. 270.

37 It is an interesting issue, noted by Mance L.J. [para. 26] but not raised by the facts of Hendrix so far established, whether partial disgorgement should still take place even if, as it happens, the defendant does not realise any profit at all from the breach. For present purposes, it is enough to note that the defendant will breach only when he expects to make a profit (or avoid a loss), and that Lord Cairns’ Act allows him to do so.

38 D. Campbell, ‘‘Hamlet without the Prince: How Leng and Leong Use Restitution to Extinguish Equity” [2003] J.B.L. 131, 133-135.

39 [1989] A.C. 367, 400D.

40 Goff and Jones on the Law of Restitution, 6th. edn. (London 2002), para. 20.019.

41 But see section 6 below.

42 S. Eastwood, “Breach of Contract, Restitution for Wrongs and Punishment: Comment” in Burrows and Peel (eds.), note 22 above, pp. 125-126; see further Bridge, M.G., “Expectation Damages and Uncertain Future Losses” in Beatson, J. and Friedmann, D. (eds.), Good Faith and Fault in Contract Law (Oxford 1995), ch. 17.

43 World Wide Fund for Nature v. World Wrestling Federation Entertainment Inc. [2002] F.S.R. 32, at [63] per Jacob J.

44 United Horse-shoe and Nail Co. Ltd. v. John Stewart and Co. (1888) 13 App. Cas. 401, 413.

45 Experience Hendrix LLC v. PPX Enterprises Inc., Edward Chalpin [2002] EWHC 1353 (Q.B.), at [50].

46 This clearly is the result of Esso Petroleum Co. Ltd. v. NIAD Ltd., unreported, 22 November 2001 (Ch.D.), at [65], in which the claimant was expressly given a choice of three bases of quantification, including an account.

47 Lever v. Goodwin (1887) L.R. 36 Ch. D. 1, 7.

48 Industrial Development Consultants Ltd. v. Cooley [1972] 2 All E.R. 162.

49 Mehigan, S. and Griffiths, D., Restraint of Trade and Business Secrets, 3rd. edn. (London 1996), p. 320. See further note 68 below.

50 Eastwood, note 42 above, p. 127.

51 The Sine Nomine [2002] 1 Lloyd's Rep. 805, at [3]. The typically casual attitude taken to the disclosure problems involved in extending restitutionary remedies was noted in D. Campbell, “The Treatment of Teacher v. Calder in A.-G. v. Blake’ (2002) 65 M.L.R. 256, 266-268.

52 [1899] A.C. 451, 467 per Lord Davey, 462 per Lord Watson concurring.

53 Harris et al., note 7 above, pp. 263-268 and Campbell, note 51 above, 264.

54 [2002] 1 Lloyd's Rep. 805.

55 Ibid., at para. [3].

56 Ibid., 805 col. 1.

57 Perhaps influenced by language employed at ibid., paras. [4, 10], Mance L.J. [para. 33] explains the breach by saying that “the market had risen”. With respect, this cannot be enough, for a general rise in the market would leave no margin between what the defendant hoped to gain by breach and the amount it would be liable to the claimant on normal principles, and so breach, far from being efficient, would have been senseless. There must have been what in The Sine Nomine [2002] 1 Lloyd's Rep. 805, at [10] is called “an adventitious benefit” to explain the defendant's conduct (and the claimant's in pursuing this claim).

58 The tribunal refines the possible measure of “wrongful profits” in a way which is theoretically correct but need not be discussed here: Ibid., at para. [4].

59 Ibid., at para. [5], following the denial of an account in identical circumstances in The Siboen and the Sibotre [1976] 1 Lloyd's Rep. 293, 337 col. 1.

60 Professor Jones obviously disapproves of The Sine Nomine in Goff and Jones, note 40 above, para. 20.043a, but does not go so far as to say it is wrong. However, the grounds on which he argues that it “may have been correct on its facts” are, with the greatest respect, unconvincing. The charterers did prove an expectation loss (note 56 above) and the loss cannot have been equal to the profits gained (note 57 above).

61 There appears to be an unsatisfactory concession to just this effect in The Sine Nomine itself: [2002] 1 Lloyd's Rep. 805, at [10].

62 Harris et al., note 7 above, pt. 3.

63 Ibid., chs. 1, 17 (esp. pp. 11-17). The argument of these chapters is run together to make the point polemically in Campbell and Harris, note 33 above.

64 Pace E. McKendrick, “Breach of Contract, Restitution for Wrongs, and Punishment” in Burrows and Peel (eds.), note 22 above, p. 106 n. 72, readers may care to reflect on The Puerto Buitrago [1976] 1 Lloyd's Rep. 250, 254-255, in which it was denied that a claimant had a “legitimate interest” (in the sense of Lord Reid's dicta in White and Carter (Councils) Ltd. v. McGregor [1962] A.C. 413, 431; discussed in Harris et al., note 7 above, pp. 160-165) in obtaining specific performance when damages were an adequate remedy. This case is the mirror image of The Sine Nomine, and the reasons why it was right to confine the claimant to compensatory damages in The Purto Buitrago apply to The Sine Nomine. Blake and Hendrix would reverse the meaning of “legitimate interest”, from being an obstacle the claimant must clear to be awarded a remedy in excess of compensatory damages to a reason for awarding him such a remedy.

65 Harris et al., note 7 above, p. 267.

66 Pace Burrows, note 24 above, p. 486 n. 18 and McKendrick, note 64 above, p. 105 n. 68.

67 P. Birks, “Inconsistency Between Compensation and Restitution” (1996) 112 L.Q.R. 375, 378; Burrows, note 24 above, p. 463 n. 7; Burrows, A., Remedies for Torts and Breach of Contract, 2nd. edn. (London 1994), p. 305 (but cf. 1st. edn., 1987, 268-269), Burrows, A., Understanding the Law of Obligations (Oxford 1998), pp. 4044; Burrows, A. and McKendrick, E., Cases and Materials on the Law of Restitution (Oxford 1997), p. 581 n. 4; Law Commission, Aggravated, Exemplary and Restitutionary Damages (Report No. 247, 1997), paras. 3.64-3.72 and A.M. Tettenborn, “Bribery, Corruption and Restitution: The Strange Case of Mr. Mahesan” (1979) 95 L.Q.R. 68, 72.

68 Tang Min Sit v. Capacious Investments Ltd. [1996] 1 A.C. 514, 521B-D. All practitioners’ texts, e.g. Mehigan and Griffiths, note 49 above, p. 320, have so far accepted without demur the impossibility of combining expectation damages and an account, but one now expects this to change (for a while).

69 Though, of course, welcoming Blake heartily, the sixth edition of Goff and Jones (note 40 above, paras. 20.024-20.034a) does not alter its basic conceptual architecture to accommodate it (Ibid., para. 1.095).

70 Bridge, M. G., “Restitution and Retrospective Law” (1999) 14 Butterworths Journal of international Banking and Financial Law 5, 8.

71 E.g. there is a line traceable between Tettenborn, note 67 above, 70, 72 and Law Commission, note 67 above, para. 3.62, of finding a place for the defence which could be based on the allowance given in equity for the defendant's skill and effort (Boardman v. Phipps [1967] 2 A.C. 46) expended in realising a profit by efficient breach.

72 Birks, P., “Definition and Division: A Meditation on Institutes 3.13” in Birks, P. (ed.), The Classification of Obligations (Oxford 1997)10.1093/oso/9780198265986.001.0001, ch. 1.

73 A.-G. v. Blake (Jonathan Cape Ltd. Third Party) [1997] Ch. 84, 93B (Ch.D).

74 Ibid., 91E-96D.

75 Ibid., 96E-97A.

76 It may well be possible to construct an argument on the basis of a close reading of Mance L.J.'s judgment that adheres to the distinction between restitution and disgorgement: see note 24 above. It is hard, however, to recover a ratio from Hendrix that does so, and impossible to do so from the judgment of Peter Gibson L.J. Most importantly, the logic of the wrongful profits argument informing Hendrix undermines this distinction, as we are arguing.

77 Lord Millett, “Equity's Place in the Law of Commerce” (1998) 114 L.Q.R. 214, 225.

78 A.-G. v. Blake (Jonathan Cape Ltd. Third Party) [2001] 1 A.C. 268, 285G (H.L.).

79 S. Worthington, “Fiduciaries: When is Self-denial Obligatory?” [1999] C.L.J. 500.

80 S. Worthington, “Reconsidering Disgorgement for Wrongs” (1999) 62 M.L.R. 218 and Worthington, S., and Goode, R., “Commercial Law: Confining the Remedial Boundaries” in Hayton, D. (ed.), Law's Future(s) (Oxford 2000), ch. 15.

81 Norberg v. Wynrib (1992) 92 D.L.R. (4th.) 449, 481.

82 A.-G. v. Blake (Jonathan Cape Ltd. Third Party) [2001] 1 A.C. 268, 299F (H.L.).

83 Ibid., 287G.

84 Ibid., 292C.

85 Ibid., 299D-E.

86 Experience Hendrix LLC v. PPX Enterprises Inc., Edward Chalpin [2002] EWHC 1353 (Q.B.), at [50].

87 In his capacity as one of the leading authorities on the career of Jim Hendrix, Mr. Paddy Ireland has referred us to Shapiro, H. and Glebbeek, C., Jimi Hendrix: Electric Gypsy (London 1995), pp. 95107 as the best account of this period of Hendrix's career. (See also the other entries for “Chalpin” in the index). We have read other biographies of Hendrix and their accounts of this period do not materially differ from Shapiro and Glebbeek, although all have a more histrionic tone.

88 These epithets are taken from the biography of Hendrix in the BBC's Music Artist Database.

89 [1974] 1 W.L.R. 1308.

90 Mance L.J. at one point observes that “the litigation about the agreement dated 15th. October 1965 was not going well for PPX” [para. 39]. We are unable to do more than speculate on the basis of what we know of the 1965 agreement, but it would appear that any such difficulties must stem from the Schroeder v. Macaulay quality of that agreement leading PPX's counsel to fear the court would not take too harsh a view of Hendrix's breach; i.e. the exact opposite of that view of breach which cases like Hendrix are seeking to promote: cf. Campbell, note 38 above, 139-140. The settlement of the US part of the earlier litigation is, however, described as follows in Shapiro and Glebbeek, note 87 above, p. 291: “[whether the 1965 agreement was enforceable] was never put to the test; Chalpin pressed his suit against Warner Brothers [whose rights were derived from Hendrix] in America, who rolled over and settled. Why? Possibly because, having seen Jimi's earning potential, they didn't want to take any chances of lengthy litigation putting a freeze on their ability to release his material and earn them far more than they could ever lose in court. There was also a risk that the court would find in favour of Ed Chalpin and declare all subsequent agreements null and void. So Ed Chalpin received a very favourable settlement”.

91 Ibid., p. 10.

92 P. Birks, “A Lifelong Obligation of Confidence” (1989) 105 L.Q.R. 501.

93 A.-G. v. Guardian Newspapers (No. 2) [1990] 1 A.C. 109.

94 Andrews, N., “Civil Disgorgement of Wrongdoers’ Gains: The Temptation to do Justice” in Cornish, W.R. et al. (eds.), Restitution: Past, Present and Future (Oxford 1998), ch. 10.

95 A.-G. v. Blake (Jonathan Cape Ltd. Third Party) [2001] 1 A.C. 268, 278 (H.L.).

96 Campbell, D. and Collins, H., “Discovering the Implicit Dimensions of Contracts” in Campbell, D. et al. (eds.), The Implicit Dimensions of Contract (Oxford 2003), ch. 2.

97 H. Collins, “Legal Classifications as the Products of Knowledge Systems” in Birks (ed.), note 72 above, ch. 3.

98 9 So. 486 (1891).

99 G. Jones, “The Recovery of Benefits Gained from a Breach of Contract” (1983) 99 L.Q.R. 443, 455.

100 A.-G. v. Blake (Jonathan Cape Ltd. Third Party) [1998] Ch. 439, 458D-E (C.A.).

101 Harris et al., note 7, pp. 277-278.

102 Hedley, S., Restitution (London 2001), esp. ch. 4.

103 P. Birks, “Three Kinds of Objection to Discretionary Remedialism” (2001) 29 W.A.L.R. 1.

104 Price's Patent Candle Co. Ltd. v. Bauwen's Patent Candle Co. Ltd. (1858) 70 E.R. 302, 303.

105 Bank Mellat v. Naipur [1985] F.S.R. 87, 92.

106 Harris et al., above note 7, p. 571.

107 E.g. Normalec Ltd. v. Britton [1983] F.S.R. 318; discussed in Campbell, note 38 above, 136 n. 27.

108 Harris et al., note 7 above, pp. 268-272, 491-494.

109 Wrotham Park Estate Co. Ltd. v. Parkside Homes [1974] 1 W.L.R. 798, 815-816.

110 E.g. Joseph v. National Magazine Co. Ltd. [1959] 1 Ch. 14, 21.

111 This point in particular, but also a number of the other points made in this article, have been indicated by Mr. Hedley in comments he has made on the Restitution Discussion Group email forum: note 20 above.

112 Experience Hendrix LLC v. PPX Enterprises Inc., Edward Chalpin [2002] EWHC 1353 (Q.B.), at [45].

113 The relationship of Hendrix to Island Records Ltd. v. Tring International pic. [1995] F.S.R. 560 is unclear.

114 P. Birks, “Equity, Conscience and Use” (1999) 23 Melb. U.L. Rev. 1, 21-22.

115 There is an exception which proves the rule: Marine and General Mutual Life Assurance Society v. St. James Real Estate Co. [1991] 2 E.G.L.R. 178; discussed in Harris et al., note 7 above, p. 494.

116 Ibid., pp. 268-272, 491-494 and Campbell, note 51 above, 264-265.

117 Seager v. Copydex (No. 2) [1969] R.P.C. 250.

118 The Court of Appeal in Hendrix would have been receptive to an argument under the Copyright Designs and Patents Act 1988 [paras. 39-40]. In Redrow Homes Ltd. v. Betts Bothers plc. [1999] 1 A.C. 197, it was held that normal compensatory damages under the 1988 Act, s. 96(2) and “additional” damages under s. 97(2) were available only in the alternative to an account of profits.

119 In Ludlow Music Inc. v. Williams (No. 2) [2002] E.M.L.R. 29, at [57-59], Pumfrey J. denied additional damages under the Copyright Designs and Patents Act 1988, s. 97(2). However, believing himself not to be tightly bound by the tradition of moderation in awarding equitable damages and being inclined to “err on the side of generosity to the claimant” (Ludlow, loc. cit., at para. [48]), he awarded (in addition to an injunction) a 25 per cent. royalty under s. 96(2) (Ibid., at para. [66]).

120 This aspect of Hendrix is discussed at length in an unpublished paper by Professor Jaffey, “Disgorgement and ‘Licence Fee Damages’ in Contract”.

121 Uncontested evidence for the claimant given by one Mr. McDermott [para. 14] raises the suspicion that the PPX recordings were marketed in a misleading way, in effect as “Jimi Hendrix” records when in fact they were “Curtis Knight” records, and it would appear that an English passing off action relating to this evidence succeeded in 1968: Shapiro and Glebbeek, note 87 above, pp. 290-291. It is difficult to see that sufficient sums would have been involved to justify continuation of these proceedings after the injunction had been awarded unless these recordings were sold as “Jimi Hendrix” recordings.

122 We are grateful to Mr. Howard Johnson for describing to us in detail what these may have been.

123 World Wide Fund for Nature v. World Wrestling Federation Entertainment Inc. [2002] F.S.R. 32. The Court of Appeal affirmed the granting of the injunction, but there was no crossappeal as to account: [2002] F.S.R. 33.

124 Pace McKendrick, note 64 above, pp. 106-107.

125 World Wide Fund for Nature v. World Wrestling Federation Entertainment Inc. [2002] F.S.R. 32, at [63].

126 Tettenborn, A., Law of Restitution, 3rd. edn. (London 2002), pp. 253255.

127 A.-G. v. Blake (Jonathan Cape Ltd. Third Party) [2001] 1 A.C. 268, 278D-280F (H.L.).

128 Hon. SirJacob, Robin, “The Onward March of Intellectual Property Rights and Remedies” in Dreyfuss, R.C. et al. (eds.), Exploring the Boundaries of Intellectual Property (Oxford 2001), ch. 17 and Mr. Justice Laddie, “Copyright: Over-strength, Over-regulated, Over-rated” (1996) 5 European Intellectual Property Review 253.

129 Picciotto, S. and Campbell, D., “Whose Molecule Is It Anyway? Private and Social Perspectives on Intellectual Property” in Hudson, A. (ed.), New Perspectives on Property Law: Obligations and Restitution (London 2003), ch. 14.

130 A.-G. v. Blake (Jonathan Cape Ltd. Third Party) [2001] 1 A.C. 268, 277H (H.L.).

131 Campbell, D., “Classification and the Crisis of the Common Law” (1999) 26 J. Law and Soc. 369, 37710.1111/1467-6478.00130.

132 Birks, P., An Introduction to the Law of Restitution (Oxford 1985; rev. edn. 1989), ch. 10. It is possible to trace the influence of this thinking back to Professor Birks’ 1982 Current Legal Problems lecture: P Birks, “Restitution and Wrongs” [1982] C.L.P. 53.

133 Harris et al., note 7 above, ch. 1.