Jurisdiction(s):
United Kingdom

Mitigation gains must be deducted before loss‑of‑chance discount; benefit valued on notional sale: Court of Appeal (England and Wales) in Barrowfen v Patel (fiduciary duty/professional negligence damages)

Published on: 28 January 2025

Published by a LexisNexis Construction expert

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Article summary

Barrowfen Properties Ltd v Girish Dahyabhai Patel and others [2025] EWCA Civ 39

What are the practical implications of this case?

The decision confirms that the authorities on mitigation, covering both losses and gains, apply just as much to damages claims for breach of fiduciary duty as they do in negligence, across the board. It also underscores that, in damages claims, causation is paramount, and the function of an award in contract or tort is ordinarily to make good the claimant’s loss caused by the breach—no more and no less in practice.

When a claimant takes reasonable steps to mitigate and, in so doing, incurs additional losses or secures benefits, those further losses or benefits should generally be brought into account when assessing the compensation payable. However, once mitigation has concluded, any subsequent costs or losses arising from the claimant’s own independent commercial choices cannot be attributed to the defendants.
Where the claim involves the loss of a chance or opportunity, the damages must be reduced to reflect the real possibility that the opportunity might not have come to fruition in any case, even absent the breach...

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