This Practice Note examines the scope of damages as a remedy for an employer in employee competition cases, eg in respect of breach of the duty of fidelity or post-termination restrictions (restrictive covenants). It compares damages to the alternative remedy of an account of profits. It looks at the assessment of damages in both contract and tort claims, including the circumstances in which negotiating damages (previously known as ‘Wrotham Park’ damages) may be appropriate. It considers factors relevant to pursuing a damages claim and provides details of further relevant resources. The remedies available in cases involving attempts to enforce post-termination restrictions may conveniently be divided between: • interim remedies available before final trial, and • remedies available following the final trial of the case Interim remedies typically consist of injunctions—see Practice Notes: • Interim injunctions in employee competition claims and confidentiality claims • Springboard injunctions in employee competition claims • Delivery up orders in employee competition claims and confidentiality claims • Search orders and imaging orders in employee competition claims and confidentiality claims • Freezing orders

Elements of a fatal accident claim There are two different elements to a fatal accident claim: • the Law Reform (Miscellaneous Provisions) Act 1934 (LR(MP)A 1934) allows an action to be brought on behalf of the deceased’s estate for: ◦ pain and suffering for the period between injury and death (see section ‘Pain, suffering and loss of amenity (PSLA) pre-death’ below) ◦ any financial loss incurred by the deceased between the date of the accident and the date of death ◦ funeral expenses (provided they were paid for by the deceased’s estate) • the Fatal Accidents Act 1976 (FAA 1976), as amended, allows an action to be brought on behalf of the dependants of the deceased for: ◦ the following losses suffered by the dependants: ‣ financial support from the deceased ‣ dependency on the deceased’s services ‣ the ‘intangible’ benefits of a spouse/parent—see Practice Note: Quantifying damages for dependants—past losses—services—Additional award for ‘intangible’ loss of services provided by a partner/parent) ◦ funeral expenses provided

This Practice Note provides an introduction to how damages are determined and quantified in international arbitration proceedings, with a focus on damages for breach of contract. An introduction to non-damages remedies in international arbitration is provided in Practice Note: Non-damages remedies in international arbitration. What law applies for the purposes of calculating damages? Generally, in international arbitration proceedings, the law that governs the substance of the dispute between the parties will also apply to the assessment of damages (eg, Chaplin v Boys). However, this should be checked in respect of the jurisdictions concerned and causes of action at issue as courts (in particular the English court) have found that while heads of damage may be a matter to be determined under the substantive law, quantification of damage is more of a procedural matter (Harding v Wealands). The House of Lords in Harding v Wealands [2006] UKHL 32 treated the quantification of damages as a procedural matter governed by the law of the forum. However, for non-contractual obligations falling within the scope of the Rome II Regulation,

Property analysis: In the case of Crown Estate Commissioners v Wakley substantial damages of £1,750,000 were awarded to a dairy farming couple over negligent misrepresentations made by their landlord, The Crown Estate. Sue Lister, consultant and head of agriculture & rural affairs at Thomson Snell & Passmore, argues that the case serves as a timely reminder to landlords and sellers that property details given to agents and solicitors must be properly and reasonably checked.

Noise-induced hearing loss is referred to as NIHL in this Practice Note. This Practice Note deals with factors relevant to the level of general damages awarded in NIHL claims such as the Judicial College Guidelines (JCG), comparable previous court decisions and the extent of the hearing loss. It also considers specific heads of special damages that are often appropriate in these cases, the disablement benefit a claimant may be able to claim in respect of hearing loss and/or tinnitus and other compensation schemes a claimant may be able to claim under. General damages The factors relevant to the likely level of general damages (and questions that will need to be asked of the claimant in order to assess general damages) include the following: • the extent of the hearing loss, partial or total: ◦ this information is likely to be drawn from medical records, medical reports and/or audiograms ◦ however, the value of a detailed witness statement from the claimant should not be underestimated ◦ attempt to give practical examples of the difficulties

This Practice Note considers the general principles of awarding damages in tort claims, including the compensatory function of damages in tort, the distinction between general and special damages, the availability of exemplary damages (punitive damages) and aggravated damages in tort claims, restitutionary damages and ‘user damages’ in tort, the date and mode of assessment, interest on tortious damages and reducing tortious damages (contributory negligence and mitigation). This Practice Note considers the general principles for when an award of damages may be available to remedy a tortious act, including negligence. For related guidance, see also Practice Notes: • The remedy of damages—general principles • Loss of chance damages • Claiming damages—tort and contract claims compared This Practice Note does not consider damages in the context of clinical negligence and personal injury claims. General principles of liability in tort claims As a general principle, in order for a claimant to successfully claim damages in tort, they must prove on a balance of probabilities that: • the defendant’s conduct did, in fact, cause them the damage, loss

IP analysis: The High Court ruled on a rare inquiry into damages following breach of contract and trade mark infringement, holding that: (1) it was appropriate to award damages based on a notional licence fee; (2) that the evidence provided meant that a comparable licence analysis was not a reliable basis for assessing the notional licence value; and that (3) in that context, the appropriate valuation basis was the economic benefits approach. Applying the economic benefits approach, the court calculated the notional licence fee based on the licensee's (ie the defendant's) avoided operating costs (including website, social media and marketing costs), adjusted for inflation and discounting using a 4% discount rate. This decision provides helpful guidance for practitioners on damages quantification methodologies in trade mark infringement cases, particularly highlighting the evidential requirements when seeking to rely on a comparables analysis and the practical application of the economic benefits approaches. Written by Charlotte Peach, senior associate at Taylor Wessing LLP.

Construction analysis: The Technology and Construction Court (TCC) struck out several heads of claim advanced against a developer by former leaseholders of residential apartments, in a claim for defects based on breaches of duty under the Defective Premises Act 1972 and breach of leasehold covenants. The court considered that several of the alleged losses were too remote, or purely hypothetical.

A damages-based agreement is an agreement which complies with the provisions of the Damages-Based Agreements Regulations 2013.

This Agreement is made on [insert date] Parties 1 [insert name of Firm], solicitors of [insert address] (the Firm, or us, we or our) 2 You [insert name of Client] of [insert address of client] (you or your) The parties agree: 1 Definitions and interpretation 1.1 In this Agreement the following expressions will, unless the context otherwise requires, have the meanings set opposite them: Costs • our charges for the work we do on your Claim calculated in accordance with clause 14; Claim • your claim as set out in clause 2.1 whether or not tribunal Proceedings are issued; Counterclaim • a claim the Opposing Party makes against you in response to your Claim; Damages • money you are entitled to under a tribunal decision or award, or money you are entitled to receive under an agreed settlement; Expenses • payments we make or agree to make on your behalf in the course of the Claim, including the fees of barristers, and VAT on those payments; Final Hearing • the final contested hearing or the contested hearing of any issue to be tried separately and a reference to a Claim concluding at Final Hearing includes a Claim settled after the

What is a DBA? Section 58AA of the Courts and Legal Services Act 1990 (CLSA 1990) provides that a damages-based agreement (DBA) is an agreement between a person providing ‘advocacy services, litigation services or claims management services’ and the recipient of those services which provides that: • the recipient is to make a payment to the person providing the services if the recipient receives a specified financial benefit in connection with the matter in relation to which the services are provided; and • the amount of that payment is to be determined by reference to the amount of the financial benefit obtained ‘Advocacy services’, ‘litigation services’ and ‘claims management services’ have the following meanings: • advocacy services means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right of audience in relation to any proceedings, or contemplated proceedings, to provide (CLSA 1990, s 119(1)) • litigation services means any services which it would be reasonable to expect a person who is exercising, or contemplating exercising,

This Practice Note explains how the damages-based agreement (DBA) regime operates for employment matters. It explains the legal context and what a DBA is. It outlines the issues with the legislation and proposals for reform. It considers what constitutes an ‘employment matter’, key terms, the requirements for an enforceable DBA, amending the DBA, specifying the ‘payment’ and fixing the payment percentage, and how costs are treated. An example calculation is given. Termination of the DBA is considered, and the SRA price transparency rules and other regulatory requirements, such as cancellation rights, risk assessments and insurance distribution activities are noted. Different rules apply to DBAs in general civil claims and in personal injury claims, and these are not considered in this Practice Note. For further guidance on these, see Practice Notes: Damages-based agreements (DBAs) and Damages-based agreements—personal injury and clinical negligence. For guidance on litigation funding in general, see Funding arrangements—overview. The legal context Traditionally, the idea that a solicitor would be financially interested in the outcome of a client's (contentious) case was seen as undesirable: the solicitor