Derry v Peek<\/a> (1889) 14 App Cas 337 at 359<\/em>). Often this<\/p>\nis again a question for the courts and is often left to their interpretation of<\/p>\n
previous case law as to whether the loss qualifies. Not only are the<\/p>\n
calculation of actual damages left to the discretion of the court but also the<\/p>\n
causal connection. This allows a huge room for error on part of the court and<\/p>\n
individual interpretation by judges. The judicial system in the UK provides<\/p>\n
some check on this by allowing an appeals system to work. One court is under<\/p>\n
the scrutiny of another, excepting of course when a claimant reaches the House<\/p>\n
of Lords which is the final point of judgment.<\/p>\n
Various defences exist for the<\/p>\n
defendant to minimise or annihilate any liability. The claimant’s knowledge of<\/p>\n
the truth is one, as a defendant who knows the truth is not being deceived and<\/p>\n
so does not suffer from misrepresentation (Eaglesfield v Marquis of<\/em><\/p>\n Londonderry (1878) 26 WR 540 at 541, HL<\/em>).This knowledge of claimant<\/p>\nmust be wholly complete and not partial, a fragmentary knowledge of the true<\/p>\n
facts is not enough and would not qualify as such, relieving the defendant. The<\/p>\n
knowledge must also be actual and not implied, meaning the claimant must have<\/p>\n
direct access to the knowledge and it must be shown that the claimant actually<\/p>\n
knows it rather than be deduced to know it because the information was<\/p>\n
available. The claimant will not suffer from not retrieving information that<\/p>\n
was available.<\/p>\n
The general rules applied in<\/p>\n
quantification by the courts is to return the claimant to the position he would<\/p>\n
have been in had the representation not been made. Although the loss need not<\/p>\n
be foreseeable, it must have been directly caused by the misrepresentation so a<\/p>\n
causal connection is often important to obtain as was outlined earlier (Smith<\/em><\/p>\n New Court Securities Ltd v Citibank NA [1997] AC 254 at 267<\/em>). The claim for<\/p>\ndeceit, which is the tortious claim under which negligent and fraudulent<\/p>\n
misrepresentation both fall, is a measure of equitable damages under which<\/p>\n
damages are payable to compensate the entire loss sustained, regardless of<\/p>\n
returning the claimant to the position in which they would have been had the<\/p>\n
misrepresention not occurred. This loss that is sustained, is calculated<\/p>\n
according to the entire loss sustained in the past and the loss sustained by<\/p>\n
the claimant in the future, clearly an estimation and to the discretion of the<\/p>\n
courts once again.<\/p>\n
When the court assess damages<\/p>\n
where property or assets have been lost by the claimant, which are not<\/p>\n
recoverable due to the nature of the asset, then the calculation of the sum due<\/p>\n
under damages, is done via addition of present values. If a claim is made under<\/p>\n
contract and the situation exists where the claimant paid monies and in return<\/p>\n
for this payment did not receive anything, then the claimant will receive the<\/p>\n
monies returned in full. Interest, business reputation, time lost and effort<\/p>\n
inserted are all aspects which are not included in the calculation and so are<\/p>\n
lost to the claimant.<\/p>\n
The court is free to decide how<\/p>\n
much is awarded, what is awarded and allowed to be awarded under the<\/p>\n
established causal connection found by the court. This total discretion gives<\/p>\n
the court much room to play, and could result in a plethora of outcomes both<\/p>\n
capable of surprising the claimant and the defendant. However, the court is<\/p>\n
regulated and the system would not function is certain rules, especially those<\/p>\n
set in precedence were not followed. The award of damages, however, varies from<\/p>\n
case to case as the evidence adduced and presented is always so variant.<\/p>\n
Ultimately, the courts attempt be fair and equitable and in doing so will apply<\/p>\n
all the facts of the case to the outcome granted.<\/p>\n