Jurisdiction(s):
United Kingdom

Contractual damages and counterfactual analysis post-One Step: Medsted v Canaccord on commission, loss of chance and cost deductions (England and Wales)

Published on: 11 November 2020

Published by a LexisNexis Dispute Resolution expert

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Article summary

Medsted Associates Ltd v Canaccord Genuity Wealth (International) Ltd [2020] EWHC 2952 (Comm) What are the practical implications of this case?

This judgment offers a clear examination of the contractual measure of damages affirmed in One Step (Support) Ltd v Morris-Garner and another [2018] UKSC 20. It is especially pertinent where a defendant advances a complex or persuasive counterfactual to justify a reduction in damages. The court held that to construct the proper counterfactual one must first pinpoint the relevant contractual obligation and the relevant breach. Speculative possibilities that sit beyond those core issues do not belong within the ‘had the contract been performed’ counterfactual. They are entirely outside the proper scope of the inquiry here. In this dispute, concerning breach of an introducing agreement, the pertinent contractual obligation was the payment of the introduction fee. The pertinent breach was the non-disclosure of trading and, as a result, the failure to pay the introduction fee. The court determined that whether trading would have continued if clients had known the commission level under the introducing agreement was beside the point, because there was no contractual duty on either party to disclose the commission level. The decision also offers helpful authority for...

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