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Lookup NU author(s): Dr Derek WhaymanORCiD
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In Novoship (UK) Ltd v Mikhaylyuk [2014] EWCA Civ 908, [2015] QB 499 the Court of Appeal held that disgorgement (or account of profits) is available against accessories (knowing recipients and dishonest assistants) to a breach of fiduciary duty. Previously, disgorgement was thought to be available in equity only against fiduciaries.Thus there is now the possibility of any combination of disgorgement of profits and compensation for losses from two or more defendants. This poses unique difficulties in quantification. While this issue was not a live one in Novoship because it did not come up on the facts, it is sure to come up in the future.This paper considers the principles that should govern quantification in three-party cases. The starting point is the first principle that one must elect between inconsistent remedies. The relevant case law is analysed to determine the contours of this principle and its sub-principles. These principles determine which heads of losses and gains are consistent and which are inconsistent with each other. The main difficulty is how to treat a bribe or secret commission. The lines of authority governing this problem are critiqued. A scheme for quantification derived from these principles is advanced accordingly.
Author(s): Whayman D
Editor(s): Sheehan, D Cooper, S
Publication type: Conference Proceedings (inc. Abstract)
Publication status: Unknown
Conference Name: Society of Legal Scholars
Year of Conference: 2015
