Contractual damages—non-pecuniary losses
Produced in partnership with Zainab Hodgson and Kavidha Clare of CMS

The following Dispute Resolution practice note produced in partnership with Zainab Hodgson and Kavidha Clare of CMS provides comprehensive and up to date legal information covering:

  • Contractual damages—non-pecuniary losses
  • Contractual damages—categories of non-pecuniary loss
  • Non-pecuniary loss—punitive damages
  • Non-pecuniary loss—damages for loss of enjoyment or amenity, damages for distress
  • Non-pecuniary loss—damages for loss of credit or reputation
  • Non-pecuniary loss—restitutionary damages
  • Damages for non-pecuniary loss—negotiating damages

Contractual damages—non-pecuniary losses

This Practice Note considers the different categories of contractual damages that may be available for non-financial loss (non-pecuniary loss), ie punitive damages, damages for loss of enjoyment and loss of amenity, restitutionary damages and negotiating damages (previously known as ‘Wrotham Park damages’).

For guidance on contractual damages generally, see Practice Note: Contractual damages—general principles.

For guidance on claiming damages for financial (pecuniary) loss for breach of contract, see Practice Note: Contractual damages—pecuniary losses.

Contractual damages—categories of non-pecuniary loss

Damages for non-pecuniary loss are awarded only in exceptional cases. This is because their award is contrary to the general rule that damages are strictly compensatory in nature. They fall into the following categories:

  1. punitive damages

  2. damages for loss of enjoyment and loss of amenity

  3. restitutionary damages

  4. negotiating damages

Non-pecuniary loss—punitive damages

Punitive damages are awarded to an innocent party in circumstances where the defaulting party has conducted itself in such a way that the court considers that party should be punished.

Such damages are rare in tort cases and almost certainly irrecoverable in contract cases.

Punitive damages are generally awarded in excess of the claimant's loss, intended to punish the defendant rather than compensate the claimant and are also known as vindictive damages, exemplary damages or retributory damages (Kuddus v Chief Constable of Leicestershire, Addis v Gramaphone).

Non-pecuniary loss—damages for loss of enjoyment or amenity, damages for distress

The general position is that

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