Rethinking Damages as the Primary Remedy

Presumption of the primacy of damages over injunction

In the next part of the podcast, I, Ashish, explore the question whether the equitable presumption that an award of damages is the primary remedy for civil wrongs is still appropriate in the context of ongoing internet breaches.

The question as to which is a better and more effective remedy in private law: damages or injunction, is one that is raised time and again while traditionally it is assumed that damages has primacy over injunction. As recently as 2014, the UK Supreme Court has held that in the context of remedies in private law, damages may usually be the more appropriate remedy and the courts should not hesitate to give damages in lieu of injunction in such cases. This was the decision of the Supreme Court in Lawrence v Fen Tigers. If you are seeking expert guidance in navigating this complex legal landscape, consider seeking professional law dissertation help. Whether you are exploring the nuances of damages versus injunctions or delving into other aspects of private law, specialised support can provide invaluable insights and clarity to your research.

At the outset, it would do well to admit that the remedy comparison between damages and injunction even for the courts was first based on whether there was inadequacy of damages and then moved on to whether there is injustice by damages. In other words, the question of whether injunction should be given to the plaintiff is not the one that is asked first by the court; rather this question is asked when the court considers that there is something wanting in the damages for a particular case which leads to the court considering whether injunction is more suitable in the given case. Nevertheless, it can be argued that primacy of damages is no longer applicable in the same way as it was in the traditional sense at least for cases involving ongoing internet breaches.

In the article entitled Injunctions v Damages (The Age of the Internet) Old Battle of Remedies Revisited’, the writer Uta Kohl compares two types of traditional remedies in law for the redressal of private wrongs, these being an award of damages and injunctive relief. While writing in the context of the appropriateness of the two remedies in the age of Internet, Kohl writes that there is a presumption of primacy of damages over injunction on the basis of the former being a remedy that is more effective, less draconian and less inhibitory as compared to injunction. However, it is also argued that in the light of development of online environment, injunctions are better suited at giving remedies as being less draconian and less inhibitory in their overall effect on electronic communications.

Therefore, while it is traditionally assumed that damages as a remedy has primacy over injunction, this is not a position that is always accepted by all writers who are writing on this subject. Especially since the Internet has now become ubiquitous, there is a possibility as Uta Kohl argues, that injunction may provide a more effective and less draconian and inhibitive remedy at least with regard to private law disputes that relate to rights and duties arising out of Internet.

Lawrence v Fen Tigers [2014] UKSC 13, [245].
Uta Kohl, ‘Injunctions v Damages (The Age of the Internet) Old Battle of Remedies Revisited’ (2000) 11(2) Journal of Law and Information Science 160.

Injunction can be supported as a better remedy as compared to damages at least in the context of Internet related rights and duties, because it is an equitable remedy. It is generally considered that equity is better able to respond to individual situations as compared to common law of the flexibility that is part of equity law. Alistair Hudson has noted that even when the Judicature Acts were enacted, injunction was continued as an equitable remedy. One of the reasons why some equitable remedies, such as injunction, were continued because equity is based on the principle that justice ought to be done in a case by case manner. Therefore, judicial examples also show that where the court has opined that because injunction is more appropriate a remedy as compared to damages, then injunction should be preferred to damages.

To continue with this thread of discussion, injunction may be preferred where damages are not able to provide an adequate remedy in the given case. This was seen in the House of Lords case AG v Blake, which was decided in 2000 where the House of Lords decided that where an equitable remedy is more appropriate for giving a remedy to the plaintiff for their particular loss, then such remedy should be preferred.

In the article by Uta Kohl, the writer uses the specific context of defamation to explore whether injunction is a more appropriate remedy. Kohl notes that courts have traditionally been reluctant to grant injunctive relief in cases involving defamation and other private wrongs where injunction was seen as a more draconian and inhibitory towards defendant.

It is also noteworthy that although traditional assumption of primacy of damages is still relevant at this time, there is also literature going back to the 1990s, which demonstrates that courts had already started to depart from this traditional analysis by this time. One reason for this departure is given by Spry in his book, The Principles of Equitable Remedies in the argument that because equity and the common law are now administered in the same courts, it has made it easier for courts to accept injunctive remedy based on the question as to whether it would be more just to grant an injunctive remedy rather than damages. The question is framed in the following statement in the case State Transport Authority v Apex Quarries. In this case, the court noted that the proper test for assessing whether the court should provide the remedy of damages or injunction is not whether damages would provide the adequate remedy but rather whether it is “just, in all circumstances, that a plaintiff should be confined to his remedy in damages?" In other words, the court raised the doubt that it cannot be just to confine the plaintiff to the remedy of damages in all kinds of cases.

Therefore, the emphasis is on case by case consideration of whether one or the other remedy may be more appropriate without assumption that there is a primacy of damages over injunction. To apply this to the question of whether there is primacy of damages over injunction, it can be said that traditionally there is primacy of damages and even now, injunction is only given where the court considers damages to be inadequate or unjust. In

Alistair Hudson, Equity & Trusts (Routledge 2013) 19.
Attorney General v Blake [2000] UKHL 4.
I.C.F. Spry, The Principles of Equitable Remedies (Lawbook Company 1990).
State Transport Authority v Apex Quarries [1988] VR 187, [193].

conclusion, there are some cases where the court will consider that injunction is a more appropriate remedy which means that primacy of damages while still relevant is not the absolute principle

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