The Damage in Negotiating Damages

Abstract This chapter advances a new analysis of One Step negotiating damages, urging that the claim underpinning these awards is a claim for restitution for unjust enrichment, not a claim for damages in contract. Moreover, this unjust enrichment claim is for the enrichment derived by D from its use of C’s property without C’s consent. This use is what D has ‘taken for nothing’, and for which C seeks a remedy. Further, being an unjust enrichment claim rather than a damages claim, it is immaterial whether C has suffered economic loss. This characterisation of the One Step claim is defended by a robust analysis of the earlier cases. If accurate, it provides the clear reason why One Step ‘negotiating damages’ can only be claimed where D has made unauthorised use of C’s property. This chapter also contrasts this claim and its remedies with the proper role and measure of remedies where the claim is in contract, tort or under Lord Cairns’ Act.