Spectacular disgorgement in NTI v Canada
Where a defendant has made a profit from a civil wrong such as a breach of contract or a tort, damages can be directed to stripping the profit from the defendant. For example, in Hickey v Roches Stores (High Court, unreported, 14 July 1976) (pdf) Finlay P held
Where a wrongdoer has calculated and intended by his wrongdoing to achieve a gain or profit which he could not otherwise achieve and has in that way acted mala fide then irrespective of whether the form of his wrongdoing constitutes a tort or a breach of contract the Court should in assessing damages look not only to the loss suffered by the injured party but also to the profit or gain unjustly or wrongly obtained by the wrongdoer.
So far as breach of contract is concerned, English law reached the same conclusion in AG v Blake [2001] 1 AC 268, [2000] UKHL 45 (27 July 2000). It was a controversial conclusion. It has been applied in Esso Petroleum Co Ltd v Niad [2001] EWHC 6 (Ch) (22 November 2001), considered in passing in Sempra Metals v Revenue [2008] AC 561, [2007] UKHL 34 (18 July 2007) and Kuddus v Chief Constable of the Leicestershire Constabulary [2002] 2AC 122, [2001] UKHL 29 (7 June 2001), and distinguished in Experience Hendrix Llc v PPX Enterprises [2003] EWCA Civ 323 (20 March 2003), WWF-World Wide Fund for Nature v World Wrestling Federation Entertainment [2008] 1 All ER 74, [2008] 1 WLR 445, [2007] EWCA Civ 286 (02 April 2007), and Devenish Nutrition v Sanofi-Aventis SA (France) [2008] 2 All ER 249, [2008] 2 WLR 637, [2007] EWHC 2394 (Ch) (19 October 2007).…