Thomas Chase et al v Cable & Wireless (Grenada) Ltd

IN THE SUPREME COURT OF GRENADA AND THE WEST INDIES ASSOCIATED STATES IN I’HE HIGH COURT OF JUSTICE GRENADA (CIVIL) Claim Number: GDAHCV2O 1210424 Between : THOMAS CHASE ZARAH CHASE AND CABLE AND WIRELESS (GRENADA) LIMITED Before: Raulston Glasgow Appearances: Pauline Hannibal of counsel for the Clainrants Rosana John of counsel for the Defendant Claimants Defendant Master 2014: October 29; November 22: 2015: January 29 RULING ON ASSESSMENT OF DAMAGES APPLICATION tll GLASGOW, M [AG.]: The present application for assessment of damages was filed on October 9, 2014. The application is supporled by the affidavit of the claimants (hereinafter “the applicants”) filed on even date. When the application came on for hearing on October 29,2014the parties were glven an opportunity to file witness statements, submissions and authorities in support oi, their contentions on the assessment, The applicants duly filed their authcrities and submissions on t2l November 14,2014′ The defendant (hereinafter the respondent) filei submissions and authorities in support of its contentions on December 5,2014, No further eviderce was filed beyond that filed by the applicants on October g, 2014. BACKGROUND The applicants are husband an,J wife entrepreneurs who write and publish what is described as ,,a dictionary of Grenadian Creole English with Grammar and Syntax.” On April 1 2, 2012 Ihe applicants delivered a written relquest to the respondent to purchase 30 books to be distributed to 13 libraries across the island of Grenada. The $100.00 per book pri:e was ,,a special lower than retail price” offer. On April 14, 2012 the respondent s corporate communications manager wrote tcr the applicanls lo “confirm that w’e will purchase 200 copies @ $100,0t1 per copy to be handed over to Mrs. Lillian Sylvester, Chief Librarian.” The 200 books were deliv,:red to the chief librarian. In fact, there was a handing over ceremony at which 30 books were dr:livered to Mrs. Sylvester on April 19,2012′ The handing oV3f cofet’Tlony was conducted by the aprplicants, the respondent and the chief librarian and was publicised through the prrnt media on or before April 27, 2012. The balance of the books being 170 in number were delivered to the chief librarian by April 20,2012 Further to those events, the applicants sent the respondent an invoice dated May 3, 2012 requesting payment for the 200 books which had been delivered purr;uant to the agreement. The respondent responded by letter dated May 18, 2012 in which it expressed regret for a “misunderstanding”. The responrJent informed the applicants that it intended to purchase $2000,00 worth of books, that is to say, 20 books rather than the 200 books slated in the email confirming the agreement The respondent offered to pay for an additional 13 brtoks in addition to 20 which had already been paid for The respondent apologised for the “miscommunication” and reiterated that “lf was never our tntention to invest $20,000 (twenty thousand dollars) in the purchase of the books, as our budget would not ttllow for this.” The issue of the money owing krok a very acrimonious turn thereafter with correspondence being sent back and forth. A telling conrmunication was sentfrom the attornerys for the respondent to the applicants on June 26,2012 in rarhich the respondent details efforts to retrieve the 170 books from t3l t4l lF1 lvl the chief librarian. In short, the chief librarian rebuffed those overtur€s on the grounds that she dir1 not receive the 170 books front the respondent and that the books r:ould only be returned on the authorisation or instructions of the applicants who had delivered same to ner. The applicants never issued a request for the return of the books ancl as such the books remained with the chief librarian. The applicants submit that they did not disnriss the respondent,s requesl that they demand the return of the books Rather, they informed the respondent that it shoulcJ facilitate this exercise by issuing a public statement in which the respondent would inform the public of the alleged misunderstanding. The respondent did not respond to this offer and as such the applicants never sought the return of the books The applicants further offered that the respondentpayforthefullorde”of 200booksbyway of 2or3instalrnents.Thisofferwasarsonor acceoted. Following the flurry of missives, the applicants launched this action on October 17,2012 by filing a claim form and statement of claim which were served on the respondent on October 18, 2012 along with the requisite accornpanying forms, The respondent nr:ver acknowledged service. Accordingly, the applicants requested and were granted a defauit judgment on February 11,20j3. The default judgment included clamages and interest to be assessed. As stated above, the parties filed evidence and submissions in support of their contentions on the assessment of damages and the hearing proceeded today. Jhere was no cross-examination of wtnesses but the court heard counsel for the parties both on their written submissions and on orat arquments. ARGUMENTS ON ASSESSMENT Applicants’ contentions l7l The applicants’ position is quite simple The measure of damages to be received is compensatory, that is to say, an award that would place the innocent party in the sarre position as if the contracl had been performed in so far as money can achreve such an outcome. The applicants’ award of damages in these circumstancers would be the amount that the respondent should have oaid for the additional 170 books which w’ere delivered buthave not yet been pilid for by the respondent. t6l t8l Further, the applicants argue that the respondent should not complerin that the applicants did not mitigate their losses. While thr: applicants agree with the legal prinr;iple that mitigation of losses must be pursued, it is their view that what the respondent sought fronr them by way of mitigation of losses was unreasonable. Thery were only required to take reasonable steps to mitigate their losses. Accordingly the demand that the applicants retrieve the 170 books from the chief librarian and seek to sell them on the open market was an unreasonable requisition. The unreasonableness, argue the applicants, lay in the fact that taking such a measure may have proven ruinous to their entrepreneurial good will. In oral submissions in amplification of this argument, the applicants remincled the court that they did consider ther offer of retraction and asked the respondent if it would concomitantly issue a public statement that it only intended to purchase 20 booksl The applicants proposed this public retraction by the respondent in an effort to forestall any public condemnation that may flow from a demand that the chief librarian return the 120 books. The respondent did not accept the request for the public statement. Respondent’s posture

[10]The respondent agrees with the applicants on the law as it relates the object and measure of damages in cases of this sort. Tte respondents view is that a defendant is only responsible forthe “resultant damage which he ought to have foreseen or contemptated when the contract was made as being not unlikely or liable to ,result from his breach.’z The respondent, however, disal;rees with the applicants on the quel;tion of mitigation of losses. The respondent argues that – “The claimant is only rec1uired to act reasonably and whether lte has done so is a question of fact in the circumstanr;es of each parlicular case, and not a question of law. He must act not only in his own infercsfs but also rn the interest of the De>fendant and keep down tne damages, so far as lf is reasonable and proper by acttng reitsonably in the matter. One ‘See paragraph 17 of the applicants’affidavit filed on October g,2Oj,4 ‘citing from Halsbury’s Laws of England Volume 12,4th edition, paragraph 1174. Counsel also cites General Tyre and Rubber Co v Firestone Tyre Co. [1975] l WLR 819; British Transport Commission v Gourley [1956] AC 1g5 and McGregor on Damages, 14’n edition, paragrerph 1-10 tel fesf of reasonab/eness is whether a prudent man would have’ acted in the same way if the original wrongful act hed arisen through his own defautt. ln itctions relating to the sale of goods it is frequently the claimants’ duty where there is an available market, to mitigate his /oss by going into the n”arket and buying or selling the same as the clso nt6y fis’,3

[11]ln its written submissions and oral arguments, the respondent contends that the applicants did not act to mitigate their losses. They were advised of the error made 5y the respondent and were asked to retrieve the 170 whic;h were the subject of the “mlsundersf anding”. The respondent,s stance is that the applicants could have taken the books and sold them on the open market or they could have pursued “…another corporate entity that was willing to donate to the purchase of the coples of the Book ‘a The respcndent further submitted that it acted reasonably by offering to pay for another 13 books in addition to the 20 books that it intended to purchase. The applicants’ refusal to retrieve the books was; a failure to mitigate their losses This inaction should considerablv affect the quantum of damages lo be awarded to the applicants. ANALYSIS AND CONCLUSION t12l The parties agree on the basis for the applicants’ entitlement to damages in this case. lt may be apposite to recite the following observation from Halsbury’s Laws of Hngland – “/n cases of breach of cctntract the contract breakeris responsrlb le and responsible only for resultant damage whicfi he ought to have foreseen or contemplated when the contract was made as being not unlikely or liable to result from his breach or for which there was a sedous possibility or retil danger.., The requisite degree of fc’resight may be attributed to the contract breaker under what ts known as lhe rule in Hadtey v Baxendale either (1) because the damage rs such as may fairly and reasonably be regarded as arising naturally, that is to say according to the usual course of things, from the breach or (2) because of special knowledge which he had at the time of making the contract.”5 – Halsbury’s Laws of England, supra, n.2 at paragraph1194 4^ Paragraph 4 ot the respondent’s submissjons t Srpr., n.2 at paragraphsLtT4 and 1175 t13l 114l I would find therefore that, subject to what is said hereinafter about mitigation, the applicants are entitled to the entire sum that remains unpaid for the balance of the books since it would have been or ought to have been within the contemplation of the parties that the applicants would have suffered this loss if there was a breach of the sort claimed in this cas,:. The respondent disputes thal the applicants should be awarded all their losses since, in the respondent’s estimation, the applicants did nothing to mitigate their losses. The burden is on the respondent to prove this assertiono. In this context, the respondent submits that the applicants, failure to retrieve the 170 books from the chief librarian was unreasonable and a failure to mitigate their losses I disagree. The legal obligation to mitigate a claim;ant’s losses only obliges the claimant to act reasonably. Accordingly it is said that the claimant – “is under no obligation to do anything other than in the orotnary course of busrness and where he has been placed in a position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in nice sca/es af lhe rnstance of the defendantwhose breach has occasioned the,Cifficutty…” In this regard, the claimant “is tinder no obligation to tnjure,.. his comntercial reputation.” l It is difficult to accept the respondents view on this issue The act o1′ demanding the return of the 170 books would have, at the very least, attracted public disparagement and may have, in all likelihood, proven ruinous to ther applicants’ commercial reputation. I find that the applicants acted reasonably in the circumstance,s since they did not dismiss the evidenily difficult proposition to demand the return of the books;. Rather they sought to limit the commercial fallout by requesting that the respondent issue a public statement to the effect that the respondent only intended to purchase 20 books as opposed to the publicised 200 books. lt does not require any speculation as to why the respondent refused this offer to issue the public statement. The issuance of such a statement would have shown where the fault lay in respect of this publ c embarrassment and would have affected the respondent’s commercial reputation t15l ” Halsbury’s Laws of England, supra, n.2 at paragraph 1193 ibid at paragraph 1194 t16l I conclude that the applicants w3fe flot obliged at law or otherwise to l:ake any step that would lead to a diminishment of their entrerpreneurial interests. In all the circumstances, the demand for the return of the books was not scrmething one would expect in the “odinary course of business,,.” Further, there was no guaranlee that the applicants would have been in a position to attract another business entity to donate the books or that they would re(;oup the losses on the opert market. The applicants are entitled to tl”e resultant losses which the respondent ought to have foreseen or contemplated when the contract was made as being not unlikely or liable to result from its breach or for which there was a seriour; possibility or real danger In this context, the applicants’ evidence: on the assessment of damages is that they seek special damages of lE18000.00. The contract pricer for 200 books was $20,000 00 The respondent admits that it paid $2000 00 which is the contracted cost of 20 books. The respondent offered to pay for addilional 13 books. This was not the bargarn. They are obligated to pay the entire sum of $18000,00 which is the balance of the contract price. The applicants arre therefore awarded damages of $111,000.00 plus costs assessed at $’1620.00. Interest will accruer on the total award of S’19,620.00 from today’s date until payment ;,#;.;,;;;; l17l Master