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Allan, B --- "Book Review: Civil Remedies in New Zealand (Rt Hon Justice Peter Blanchard (Consulting Editor))" [2005] OtaLawRw 11; (2005) 11 Otago Law Review 155

Book Review: Civil Remedies in New Zealand (Rt Hon Justice Peter Blanchard (Consulting Editor) and multiple authors. Brookers Ltd, New Zealand, 2003)

This is a very useful text. Its underlying premise is that some right has been infringed, or is about to be, raising the question as to what remedies arise. Of course, most texts on substantive law provide some analysis of remedies developed in that branch of the law and there are texts on damages and equitable remedies. This text, however, seeks to provide a general analysis of remedies for infringement of civil rights in a New Zealand context. There are limits to what such a text can do: this is recognised by referring readers to more specific texts, but the coverage, while very broad, is deep enough to at least provide a good foundation. It was pleasing to see that, generally, the depth of analysis reflected the contentiousness or difficulty of the particular topic.

There is probably no optimal way of organising the contents of a text such as this. The particular choice made has been to cluster chapters according to the type of remedy – whether it be compensatory, injunctive, requiring the return or disgorgement of property and so on. In all there are ten such clusters. One consequence of this approach is that there is a need to read across a number of clusters in order to ascertain the range of potential remedies available in, for example, a contractual context.

No doubt to reflect the fact that damages are the most commonly sought remedy, the first three chapters are concerned with contract, tort and equitable damages respectively. All three mention the current trend to focus on the nature of the obligation or duty being breached as providing a better guide to the particular remedy to be given than the particular cause of action invoked by a plaintiff. It remains necessary, as Bruce Pardy writes (p 86), to understand the principles by which damages are to be calculated so that remedies can be crafted in a principled way. Thus, formally distinguishing between the three causes of action as this text does is still important: in the effort to be flexible, there has not yet been a destruction of the foundations.

There is little controversial about the first and second chapters, as the rules relating to recovery of contract and tort damages are well established. Apart from identifying the protection of expectation interests as the norm in assessing contract damages, Maree Chetwin gives some account of when the reliance or restitution interests might be safeguarded instead. In this, she anticipates the more detailed discussion of restitution by Professors Grantham and Rickett in chapter 8. Another notable aspect of her chapter is the detailed discussion of the problem of recovering for lost chances. Bruce Pardy takes a more declaratory approach in his chapter on torts, to the point that some readers might find the more detailed accounts of causation in the earlier or next chapter preferable.

Three closely related chapters, albeit somewhat later in the book, consider statutory relief under the Contractual Remedies Act, Illegal Contracts Act and Fair Trading Act and the general principles of exemplary and aggravated damages respectively. Dr Turner ’s chapter on statutory relief provides a detailed commentary on the relationship between the assessment of common law damages and the exercise of the statutory discretions to give relief established by the specified legislation. Still related to the topic of damages, yet slightly further away, is the chapter on contribution.

As a “new kid on the block” in terms of remedies, equitable damages are considerably more controversial, requiring a much more discursive and rigorous approach. Texts are needed not simply to record the operation of the remedy, but to assist in establishing just how it is to work. Geoff McLay does not shrink from the task, saying (p 129) that equitable damages “have been fought for and battled against with an almost religious determination”. While the controversy may have been resolved in favour of acceptance, there are still uncertainties as to the parameters of this new remedy, and this chapter provides a careful and balanced account. Matters still in contention include the questions of whether there can be exemplary equitable damages, the relevance of common law notions of causation and remoteness and the place of contributory negligence.

In respect of causation, the argument is that the common law limitation of liability effected by the rules of remoteness should not limit recovery from one who has contravened an equitable obligation, which is traditionally much stricter. On the other hand, with the fusion of common law and equity, and the subsequent recognition of this class of damages, the argument is that they must be calculated in light of that fusion. McLay provides a comprehensive analysis of the relevant cases in which the competing views have arisen. He then concludes on this point by noting the distinction drawn in BNZ v NZ Guardian Trust Co Ltd [1999] 1 NZLR 664 between (a) situations where trustees have had to restore trust property irrespective of remoteness and lack of foreseeability (for example, Street J’s decision in In re Dowson; Union Fidelity Trustee Co Ltd v Perpetual Trustee Co Ltd

(1966) 84 WN (Pt 1) (NSW) 399) or where fiduciaries have been held strictly liable and (b) situations where a fiduciary’s obligations are incidental or akin to a tortious duty of care.

Resolution of these choices seems to turn upon a policy determination as to how strictly liable a trustee or fiduciary is to be. The same choice informs the issue of whether contributory negligence is to be available as a mechanism to reduce a defendant’s liability. McLay’s solution is to draw a distinction: to recognise that some claims for equitable damages are in reality negligence or breach of contract claims flying under a flag of convenience, and plaintiffs should be responsible for their own carelessness. He then says (p 186) “[b]ut when breaches of fiduciary duty are imposed because of the vulnerability of one party it ought to be acknowledged that contribution or apportionment is not usually an appropriate mechanism to reduce the losses suffered by the more vulnerable party.”

The succeeding four chapters are joined under the heading “Remedies of Prohibition and Compulsion”, meaning injunctions (permanent and interlocutory respectively), freezing and seizing orders and specific performance. The jurisdictions for all of these remedies are “developed and mature” (p 207). As a result, there has barely been any judicial movement in these areas in the last ten years, which is reflected in the clarity with which the principles in this area can be (and have been) enunciated. After giving an account of the 157jurisdictional and procedural elements of permanent injunctions, Andrew Barker gives a useful account of their deployment in particular situations, the most controversial and active of which is their use to prevent publicity that would be a contempt of court.

As Barker says (p 215), the availability of damages is now a strong discretionary factor against the grant of a permanent injunction. Unfortunately, he confines his consideration of the relevance of equitable damages in this context to a footnoted comment that “it may be” that adequacy of damages will come to play a role with equitable obligations. In light of the controversies rehearsed in chapter 3, it is likely that such a suggestion is equally contentious.

The most notable feature of the chapter provided by J Stephen Kó s is that not only does he provide a clear articulation of the legal rules, but considerable practical guidance as well, to the extent of including checklists of documents to be filed in court. This is consistent with the nature of the orders under consideration: Mareva injunctions, Anton Pillar and charging orders are often applied for in great haste to prevent apprehended dissipation of assets. He then provides a detailed instruction set for the actual execution of an Anton Piller order.

The other “new kid on the block” in the area of civil remedies is restitution, at least as a coherent “unit”, thanks to its unification around the principle of unjust enrichment. Professors Grantham and Rickett seek to dispel certain confusion surrounding terminology in this area, in particular the tendency to equate unjust enrichment with restitution. Rather, the unjust enrichment is that which calls for a remedy, which will always be restitution; whereas restitution refers to a group of remedies which have as their objective the stripping of gains made by a defendant as a result of some wrong. This wrong may well be a breach of contract or tort, both of which traditionally call for a compensatory remedy, and unjust enrichment might well be entirely absent.

Thus, a distinction is to be drawn between unjust enrichment as the cause of action in respect of which restitution is sought and other causes of actions based on some alleged wrongdoing. This distinction shapes the treatment of the topic in this chapter: it deals quite briefly with restitution for unjust enrichment and then turns to the more difficult question of when restitution is available for other causes of action. This is more difficult because such causes of action do not have restitution as their primary remedy, so for restitution to become available, the primary (normally compensatory) remedy must be displaced. After responding to objections commonly raised to the very idea of restitution being used where the primary remedy is compensatory, the learned authors attend to the more practical question of just when disgorgement is going to be appropriate.

This is where things tend to break down. There is no doubt that courts have been prepared to order restitution, and several examples are cited in this chapter.

To date, however, no satisfactory general statement of principle has been derived. Lord Nicholls in A-G v Blake [2000] UKHL 45; [2001] AC 268 spoke in terms of a plaintiff having some legitimate interest in preventing a defendant’s profit-taking which is interpreted here as requiring that a plaintiff be “unconditionally entitled to the defendant’s actual performance” (p 391) of its contract, so as to deprive a defendant of its normal obligation to pay damages for breach. The learned authors appear to recognise that this is a very limited class and take up the suggestion made in Blake that a defendant will come under a restitutionary obligation where the undertaking to perform is “closely akin to a fiduciary obligation” without further exploration.

To complete the chapter, Professors Grantham and Rickett clarify the meaning of “account” as being simply a “process or mechanism for determining the quantum of liability” (p 405). The process of clarifying by clearing away misconceptions is continued on into their next chapter (“Proprietary Remedies”), where they tackle the constructive trust and suggest a number of factors which, if present, will justify the imposition of a remedial constructive trust in place of a more traditional remedy. Other proprietary remedies discussed include the equitable lien and subrogation.

The concluding chapters of the text are relatively straight-forward. There is a useful comparative account of the three mechanisms by which a declaratory judgment can be obtained. Without any explanation as to why they are present in a text on remedies, there are three short chapters dealing in turn with the working of the Official Information Act, the Privacy Act and the Human Rights Act. The penultimate chapter on Limitations looks to the effect of contractual exclusion clauses and statutory time limits and finally, there is an account of the court’s power to award costs.

Barry Allan, Faculty of Law, Otago University.