Showing papers in "Modern Law Review in 2008"
TL;DR: The case for regulators to be responsive not only to the attitude of the regulated firm but also to the operating and cognitive frameworks of firms; the institutional environment and performance of the regulatory regime; the different logics of regulatory tools and strategies; and to changes in each of these elements is stressed.
Abstract: Really Responsive Regulation seeks to add to current theories of enforcement by stressing the case for regulators to be responsive not only to the attitude of the regulated firm but also to the operating and cognitive frameworks of firms; the institutional environment and performance of the regulatory regime; the different logics of regulatory tools and strategies; and to changes in each of these elements. The approach pervades all the different tasks of enforcement activity: detecting undesirable or non-compliant behaviour; developing tools and strategies for responding to that behaviour; enforcing those tools and strategies; assessing their success or failure; and modifying them accordingly. The value of the approach is shown by outlining its potential application to UK environmental and fisheries controls. Putting the system into effect is itself challenging but failing to regulate really responsively can constitute an expensive process of shooting in the dark.
262 citations
TL;DR: In this paper, the authors make a constructive contribution to this on-going European and North American debate over constitutional democracy by presenting and defending public philosophy and civic freedom as an effective way to criticise and democratise globalisation from above.
Abstract: INTRODUCTION This is a period of rapid constitutional and democratic change around the world. Old and new constitutions – local, national, supranational, regional, global – are in transition and so are old and new concepts of constitutionalism. One response of political philosophers has been to reflect critically on the prevailing principles of legitimacy of constitutional democracy in the light of these changes in practice, testing the adequacy of the principles in one direction and the legitimacy of the changes in the other. In this fourth chapter I would like to make a constructive contribution to this on-going European and North American debate over constitutional democracy by presenting and defending public philosophy and civic freedom as an effective way to criticise and democratise globalisation from above. I do this by starting within the debates over a range of dominant and agonistic approaches, and showing how, step by step, internal criticisms of their limitations lead to the more radical, practice-based and civic freedom-oriented public philosophy in a new key. The first section provides a brief synopsis of work on the principles of legitimacy over the last ten years, laying out two principles of constitutional democracy and six main features of how they work together in testing the legitimacy of democratic constitutional practice. The second section sets out three large-scale trends of constitutional change in practice from the perspective worked up in section 1 and suggests that these trends threaten or diminish democratic freedom.
120 citations
TL;DR: Most international lawyers approved of the 1999 bombing of Serbia by the members of the North Atlantic alliance as discussed by the authors. But most of them also felt that it was not compatible with a strict reading of the UN Charter.
Abstract: Most international lawyers approved of the 1999 bombing of Serbia by the members of the North Atlantic alliance. But most of them also felt that it was not compatible with a strict reading of the UN Charter. The article describes the argumentative techniques through which international lawyers tried to accommodate their moral intuitions with their professional competence. The urge to achieve this, the article argues, arose from a general turn to ethics in the profession that has been evident since the end of the Cold War. This has often involved a shallow and dangerous moralisation which, if generalised, transforms international law into an uncritical instrument for the foreign policy choices of those whom power and privilege has put into decision-making positions.
96 citations
TL;DR: The European human rights regime is often described in constitutionalist terms: as the move towards an integrated order with the European Convention of Human Rights as its “constitutional instrument” at the top.
Abstract: The evolution of the European human rights regime is often described in constitutionalist terms: as the move towards an integrated order with the European Convention of Human Rights as its “constitutional instrument” at the top. In this article, I seek to show that this description is misguided and that the regime is better regarded as pluralist – as characterised by a heterarchical relationship between its constituent parts that is ultimately defined politically and not legally. The emergence and workings of this pluralist order are traced through the interaction of the European Court of Human Rights with domestic courts in Spain, France, the European Union and the United Kingdom. All these cases not only show conflicts over questions of ultimate supremacy but also significant convergence and harmony in day-to-day practice. I begin to identify factors that have led to this convergence and conclude that central characteristics of pluralism – incrementalism and the openness of ultimate authority – seem to have contributed to the generally smooth evolution of the European human rights regime in a significant way. This finding suggests a broader appeal of pluralist models as alternatives to constitutionalism in the construction of postnational authority and law.
89 citations
TL;DR: In this article, the authors trace the intellectual history of the Fair Labeling principle and examine its possible justifications in respect of offence labelling, noting that labelling is important in two distinct senses: that of description, and that of differentiation.
Abstract: ‘Fair labelling’ has become common currency in criminal law scholarship over recent decades, but the principle's scope and justification has never been analysed in detail. Basic questions remain unanswered, such as the intended audience for these labels and whether they assume the same importance in respect of both offences and defences. This article traces the intellectual history of the principle and examines its possible justifications in respect of offence labelling, noting that labelling is important in two distinct senses: that of description, and that of differentiation. It goes on to sketch out some considerations which are of importance in the principle's application, before concluding with a discussion of its applicability to defences.
78 citations
TL;DR: In this paper, the authors examine the two predominant theories of the corporate objective, namely the shareholder primacy and stakeholder theories, and present a new model, the entity maximisation and sustainability model, which focuses on the company as a separate legal entity.
Abstract: Public companies play crucial roles in today's world, and it has been acknowledged that ascertaining the objective of such companies is a critical issue. However, there remains great uncertainty as to what that objective should be. This article examines the two predominant theories of the corporate objective, namely the shareholder primacy and stakeholder theories. This is followed by an explanation of and the case for a new model, the entity maximisation and sustainability model. This model focuses on the company as a separate legal entity and maintains that the objective of the company is to maximise the wealth of the entity as an entity and, at the same time, to ensure that the company is sustained financially.
71 citations
TL;DR: In this article, the welfare principle of Section 13(5) of the Human Fertilisation and Embryology Act 1990 was criticised and it was shown that extending the "welfare principle" to decisions taken prior to a child's conception is unjust, meaningless and inconsistent with existing legal principle.
Abstract: This article challenges the assumption that their future children's welfare is a relevant consideration when deciding whether to provide a person with assisted conception services. It does not argue that infertility treatment ought to be available as of right. Rather, this article's proposal is that section 13(5) – which specifies that no-one shall receive assistance with conception unless account has first been taken of the welfare of any child who might be born – should be deleted from the Human Fertilisation and Embryology Act 1990. Extending the 'welfare principle' to decisions taken prior to a child's conception is shown to be unjust, meaningless and inconsistent with existing legal principle.
64 citations
TL;DR: In this article, the authors consider the development and use of dispersal powers, introduced by the Anti-Social Behaviour Act 2003, and situate these within the context of wider legislation and policy initiatives.
Abstract: This article considers the development and use of dispersal powers, introduced by the Anti-Social Behaviour Act 2003, and situates these within the context of wider legislation and policy initiatives. It explores the ways in which the powers have been interpreted by the courts and implemented by police and local authorities. The article critically analyses the manner in which the powers: introduce ‘public perceptions’ as a justification for police encroachments on civil liberties; conform to a hybrid-type prohibition; constitute a form of preventive exclusion that seeks to govern future behaviour; are part of a wider trend towards discretionary and summary justice; and potentially criminalise young people on the basis of the anxieties that groups congregating in public places may generate amongst others. It is argued that the significance of dispersal orders derives as much from the symbolic messages and communicative properties they express, as from their instrumental capacity to regulate behaviour.
62 citations
TL;DR: The Corporate Manslaughter and Corporate Homicide Act 2007 as discussed by the authors is a disappointment, restricting the range of potential defendants and allowing its focus to be deflected from systemic fault to individual fault.
Abstract: Despite a gestation period extending over thirteen years, the Corporate Manslaughter and Corporate Homicide Act 2007 is a disappointment. It is limited in its scope, restricted in its range of potential defendants and regressive to the extent that, like the discredited identification doctrine before it, it allows its focus to be deflected from systemic fault to individual fault. As a result the Act may not curb the type of short-sighted risk management decisions that can lead to the deaths of innocent workers, consumers and members of the public. Further, by requiring DPP consent to prosecute, the Act threatens to entangle corporate manslaughter prosecutions in the political process to an unacceptable degree. Despite these weaknesses, the symbolic significance of the Corporate Manslaughter and Corporate Homicide Act 2007 may ultimately transcend its methodological deficiencies.
38 citations
32 citations
TL;DR: In this paper, the authors examine whether European human rights law is well equipped to deal with the challenge of ethnic profiling and if not, how it should be reformed, and explain why combating ethnic profiling has been made more difficult by an overly protective reading of the requirements of data protection laws.
Abstract: Ethnic profiling, defined as the use of racial, ethnic or religious background as a determining criterion for the adoption of law enforcement decisions, has been rising significantly in Europe, in particular in the wake of the terrorist attacks of 11 September 2001. This article examines whether European human rights law is well equipped to deal with this challenge, and if not, how it should be reformed. Against the widely held assumption that personal data protection legislation is insufficiently protective of ‘sensitive’ data relating to race or ethnicity, it explains instead why combating ethnic profiling has been made more difficult, rather than less, by an overly protective reading of the requirements of data protection laws. It then discusses the additional measures that European states could take to address more effectively the human rights concerns prompted by the development of ethnic profiling.
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TL;DR: In this paper, the authors consider the role that the value of security might play in criminalisation and examine some existing offences that are created or structured in a particular way for security reasons.
Abstract: This essay considers the role that the value of security might play in criminalisation. While endorsing security as a legitimate rationale for the creation of a criminal offence, it examines some existing offences that are created or structured in a particular way for security reasons. This is done through a two-stage analysis. Stage one considers the consequences of adopting an offence or offence definition if it was interpreted ideally and complied with perfectly. Stage two considers how we can expect the offences to operate in the real world given imperfect compliance and non-ideal interpretation.
TL;DR: The decision of the House of Lords in Lonsdale v Howard & Hallam Limited as mentioned in this paper examined the correct method to be applied when calculating the compensation of commercial agents under Regulation 17 of The Commercial Agents (Council Directive) Regulations 19933 (the Regulations).
Abstract: This note examines the decision of the House of Lords in Lonsdale (t/a Lonsdale Agencies) v Howard & Hallam Limited1 where the House of Lords were asked to rule on the correct method to be applied when calculating the compensation of commercial agents2 under Regulation 17 of The Commercial Agents (Council Directive) Regulations 19933 (the Regulations). This ruling settles this aspect of the law in England and Wales after almost fifteen years of legal and commercial uncertainty on the matter.
TL;DR: The Commission's White Paper examining options for reforming European governance was published on 25 July 2001 as mentioned in this paper, which is coincidental that the Irish 'no' vote in their referendum on the Nice Treaty was not exclusively a reaction to the White Paper's conclusions that political procedures are at fault and require reform.
Abstract: The Commission' s White Paper examining options for reforming European governance was published on 25 July 2001.1 It is coincidental that the document emerged within a month of the Irish 'no' vote in their referendum on the Nice Treaty.2 This makes the document all the more pertinent. The Commission seizes upon the Irish decision as evidence that the White Paper raises issues that must be addressed to counteract the apathy and resistance of European citizens to the activities of the EU and to integration more generally. Whilst this may be true in part, the Irish 'no' was not exclusively a reaction to the White Paper's conclusions that political procedures are at fault and require reform. Rather, the Irish decision was more concerned with the actual direction and policy that the EU has adopted, particularly with regard to the enlargement process.3 The White Paper comes at a crucial stage of EU integration. Enlargement and political union are both key objectives for which the EU has set ambitious deadlines to complete. Perhaps rather belatedly, the White Paper has recognised that for these objectives to be successful, the Union must be more in tune with the expectations of its citizens. For example, concepts such as citizenship need to be given a more tangible meaning that enables EU citizens to feel as if they themselves have a stake in the direction that the EU is taking. The Commission President, Romano Prodi's ongoing programme of reforms to combat fraud and mismanagement are a welcome development and the White Paper is an integral part of that reform process. The emphasis on participation through engaging with civil society and a commitment to increased openness are both important inclusions, though there is room for further improvement in these areas. This White Paper is aimed not just at politicians, but at all who have a stake in the EU. Ultimately this includes all EU citizens whose lives are affected by European legislation, whether at their place of employment or if they are buying a package holiday. The question that remains to be answered is whether the White Paper will provide the necessary impetus for all levels of governance in the EU to engage with citizens with regard to what role the EU should play in their lives. The engagement with civil society is crucial but may not be enough. Apathy in the
TL;DR: Guinier as discussed by the authors argues that vibrant constituencies of accountability can transform the representational relationship to reimagine democracy as self-governance not just self-government, drawing on historic and contemporary examples of ordinary people who mobilize collectively to build new forms of citizen power before and after elections.
Abstract: This year's Chorley lecture examines certain theoretical and practical questions concerning political representation in constitutional democracies and advances three claims. (1) That electocracy (rule by elections) reduces the role of citizens to a series of discrete choice points, often shifting the actual moment of choice to the politician. (2) That a preoccupation with winner-take-all elections encourages representatives in the US to see themselves as powerful strangers with a proprietary interest in their position. (3) That representatives can deepen democracy by functioning as catalysts for citizen involvement not just surrogates for citizen views or identities. Drawing on historic and contemporary examples of ordinary people who mobilize collectively to build new forms of citizen power before and after elections, Professor Guinier adapts the framework of collective efficacy to describe this conceptual move. She argues that vibrant constituencies of accountability can transform the representational relationship to reimagine democracy as self-governance not just self-government.
TL;DR: In this paper, the authors argue that off-duty conduct may lead to lawful termination of employment only if there is a clear and present impact or a high likelihood of such impact on business interests; a speculative and marginal danger does not suffice.
Abstract: This article addresses the termination of employment because of the conduct of the employee in her leisure time, in the light of the right to private life. It explores the impact on the retention of employment of activities taking place outside the workplace and outside working hours, and argues that the approach of UK courts and tribunals, which is based on a primarily spatial conceptualisation of privacy, is flawed. A fresh approach to privacy, resting on the idea of domination, is proposed, which is sensitive to the particularities of the employment relationship. Considering the fairness enquiry in dismissal, it argues that off-duty conduct may lead to lawful termination of employment only if there is a clear and present impact or a high likelihood of such impact on business interests; a speculative and marginal danger does not suffice. It further proposes that a particularly meticulous test is appropriate when certain suspect categories, such as the employees' sexual preferences, are at stake.
TL;DR: In this article, the role of "declared" conventions, to be viewed as influential rather than binding "soft law", is discussed, and the usefulness of using hard and soft law in the constitutional context is assessed.
Abstract: Discusses issues of constitutional reform in the UK. Focuses on the role of "declared" conventions, to be viewed as influential rather than binding "soft law". Considers whether conventions can be "declared", looking at the nature of constitutional conventions as examples of constitutional soft law. Assesses the usefulness of using hard and soft law in the constitutional context, highlighting the three salient regulatory elements of standard-setting, compliance-monitoring, and enforcement provisions.
TL;DR: In this paper, the authors examine the implications of the latest change, namely the abolition of the offences of blasphemy and blasphemous libel by section 79 of the Criminal Justice and Immigration Act 2008.
Abstract: Recent years have witnessed a considerable growth in legislation and litigation concerning religion. This article examines the implications of the latest change, namely the abolition of the offences of blasphemy and blasphemous libel by section 79 of the Criminal Justice and Immigration Act 2008. First, the article provides the context by examining what has been lost, analysing the ambit of the offence, focussing on litigation in the twentieth century both in domestic courts and at the European Court of Human Rights. Second, the article seeks to explore why blasphemy has been abolished now, scrutinizing five developments that led to the abolition. The article concludes by examining the extent to which the criminal law continues to protect religious beliefs and believers, contending that while the body of the blasphemy laws is dead, its soul lives on in a plethora of other criminal laws and, more problematically, in non-legal means of control.
TL;DR: In this article, the US Supreme Court's approach to the habeas corpus entitlements of suspected terrorists detained in Guantanamo Bay and argues for the extension of constitutional habea corpus rights to them is outlined.
Abstract: This article outlines the US Supreme Court's approach to the habeas corpus entitlements of suspected terrorists detained in Guantanamo Bay and argues for the extension of constitutional habeas corpus rights to them. The article considers two ways in which the Supreme Court might carry out this task: first, ‘the territorial approach’ (based on domestic legal principles of ‘unincorporated territories’ and principles of leasehold), and secondly, ‘the extraterritorial approach’ (based on international purposive approaches to the reach of human rights treaties exemplified by the European Court of Human Rights' Article 1 jurisprudence). For reasons of effectiveness of protection, the Article expresses a clear preference for the latter. The House of Lords decision in R (Al-Skeini) v Secretary of State for Defence (2007) is proposed as a template for such a development. Finally the article refutes arguments rejecting such a development based on the ‘trade-off thesis’ and perceptions of judicial competence.
TL;DR: In this paper, the authors explore whether authors can dedicate their copyright to the public domain and suggest that such dedications are no more than copyright licences which, in English and US law at least, can be revoked at will.
Abstract: This article explores whether authors can dedicate their copyright to the public domain. Such dedications are becoming increasingly relevant as authors now see the expansion of the public domain as value in itself. This is facilitated by organisations providing pro forma documents for dedicating works to the public domain. However, there has been no real consideration of what, if any, legal effect a dedication to the public might have. This article suggests that such dedications are no more than copyright licences which, in English and US law at least, can be revoked at will. This means that users of such works must rely on estoppel alone to enforce any dedication to the public domain.
TL;DR: The authors explored recent developments in the law of adverse possession which have been shaped by particular discursive constructions of both squatters and dispossessed landowners and developed a taxonomy of squatting by mapping the positions adopted by the Law Commission, the legislature and various domestic and European courts.
Abstract: Legal responses to the activity of ‘squatting’ include criminal justice, civil actions, property law and housing policy Some legal analyses of unauthorised occupation focus on the act of squatting, others on the squatter's claim to title through adverse possession This paper explores recent developments in the law of adverse possession which have been shaped by particular discursive constructions of both squatters and dispossessed landowners It develops a ‘taxonomy of squatting’ by mapping the positions adopted by the Law Commission, the legislature and various domestic and European courts, in respect of moral issues thrown up by the doctrine of adverse possession, including the distinction between good faith and bad faith squatting, the landowner's duty of stewardship, and the question of compensation By unpacking the circumstances in which squatting occurs, the paper develops a series of matrices to classify legal responses to unlawful occupation and to facilitate a more systematic and coherent understanding of law's responses to squatting
TL;DR: In this article, the authors present an interpretation and understanding of the Rome I Regulation, which aims to modernise the current choice of law rules in contractual obligations and convert the Rome Convention into a Council Regulation.
Abstract: The applicable law to a contract in the absence of the parties' choice is governed by Article 4 of the Rome Convention, which has been implemented in the UK by the Contracts (Applicable Law) Act 1990. This rule adopts the ‘closest connection principle’ as a basic principle to decide the applicable law, but also introduces specific presumptions to simplify the process. The current rule has been criticised for its uncertainty. As a result, a substantive change has been provided in the Rome I Regulation, which aims to modernise the current choice of law rules in contractual obligations and convert the Rome Convention into a Council Regulation. The new Article 4 aims to enhance certainty and to overcome the difficulties of the current rules of the Rome Convention. However, a close scrutiny of the new Article 4 shows that it does not properly achieve its aim. The article aims to critically analyse Article 4 of the Rome I Regulation and to provide suggestions for its interpretation and understanding.
TL;DR: In this article, the authors examine the principles of the existing EC contract law published by the European Research Group on the Existing EC Contract Law (Acquis Group), a key player within the academic network charged with the preparation of a common frame of reference.
Abstract: The article examines the ‘Principles of the Existing EC Contract Law’ (Acquis Principles) published by the European Research Group on the Existing EC Contract Law (Acquis Group), a key player within the academic network charged with the preparation of a ‘Common Frame of Reference’. The Acquis Principles may therefore have a considerable impact on the shape and development of EC Contract Law. It is argued that the Acquis Principles do not constitute merely a restatement, or systematic revision, of existing EC private law. To a significant extent, the Acquis Group has drafted ‘desirable rules’, based on ‘political’ decisions that may even entail a transformation towards a regulatory model of private law. At the same time, the Acquis Principles clearly demonstrate that the acquis communautaire is not a coherent system of contract law that can be taken to have emancipated itself from the acquis commun.
TL;DR: In this paper, the authors examined the recent Court of Appeal judgment in Bree, in which the court considered the guidance that should be given to a jury when the complainant is intoxicated at the time of an alleged rape.
Abstract: The article examines the recent Court of Appeal judgment in Bree, in which the court considered the guidance that should be given to a jury when the complainant is intoxicated at the time of an alleged rape. As well as analysing the reasoning of the court in Bree, the judgment is placed in context by examining factors, such as social attitudes, that influence juror decision-making in rape cases. It also examines the suggestion made by the court in Bree that further law reform in this area would represent ‘patronising interference’ in the lives of women.
TL;DR: The authors revisited two central cases of modern English copyright law, Walter v Lane and Interlego v Tyco Industries, and suggested that their reasoning is problematic; they argued that the transcripts of Lord Rosebery's speeches were not books for copyright purposes.
Abstract: The questions at the heart of copyright – what is a work, and the extent of copyright protection – are considered. Arguments are presented firstly for an understanding of works oriented around expressive intent, and secondly for a statutory test of infringement that pays closer attention to issues of policy and the authorial acts that copyright rewards. The article revisits two central cases of modern English copyright law, Walter v Lane and Interlego v Tyco Industries, and suggests that their reasoning is problematic; Walter v Lane because the transcripts of Lord Rosebery's speeches were not books for copyright purposes, and Interlego because the technical specifications were part of the drawings, which were consequently new artistic works for copyright purposes. This is supported by contemporary authority – including paradoxically Sawkins v Hyperion Records, which recently affirmed the correctness of both cases – and has wider implications for our copyright regime.
TL;DR: The authors examines the regulatory and policy challenges of the service and pressure dynamic, focusing upon the provision of public services by charities, considering the decision of the Charity Commission in the cases of Trafford and Wigan, and the hurdles faced by charities wishing to pursue a political agenda alongside the state's concern with protecting against terrorism.
Abstract: Charities in the Victorian era were characterised by the notions of service and pressure, acting as a shield and a sword for social change. Charities continue to pursue such policies, but do so at the behest of state agendas on public service provision and civic engagement. This article examines the regulatory and policy challenges of the service and pressure dynamic, focusing upon the provision of public services by charities, considering the decision of the Charity Commission in the cases of Trafford and Wigan, and the hurdles faced by charities wishing to pursue a political agenda alongside the state's concern with protecting against terrorism. The article concludes by considering the arbitrary choice made within the regulatory framework between acceptable and unacceptable political conduct and the focus upon good governance in charities and the issues which arise under section 6(3)(b) of the Human Rights Act 1998.
TL;DR: The authors investigates the extent of this practice and the manner in which judges employ impact assessments and warns of the potential consequences if the judiciary avails itself too readily of these highly politicised, and sometimes deceptive, documents.
Abstract: For some time ‘regulatory reform’ has been a government watchword, and the streamlining and improved quality of regulation its professed ambition. Impact assessments (formerly known as regulatory impact assessments) are a significant ingredient in these governmental initiatives, now promoted by the newly created Department for Business, Enterprise and Regulatory Reform. Just as they have come to refer rather freely to the Explanatory Notes that now accompany all public Acts of Parliament, judges have also begun to invoke impact assessments when construing legislation. This paper investigates the extent of this practice and the manner in which judges employ impact assessments. It warns of the potential consequences if the judiciary avails itself too readily of these highly politicised, and sometimes deceptive, documents.
‘The aim of good prose words is to mean what they say.’
G. K. Chesterton, Daily News 22 April 1905
TL;DR: In the case of international organisation immunity, this approach was not taken by the European Court of Human Rights in Al-Adsani v United Kingdom (2001) nor by the House of Lords in Jones v Ministry of the Interior of Saudi Arabia (2006) as mentioned in this paper.
Abstract: Granting immunity from suit to a foreign state or an international organisation, deprives the plaintiff of access to court and appears incompatible with the rule of law. Since the European Court of Human Rights judgment in Waite v Germany (1999), the availability of alternative means for dispute settlement has been emphasised in the context of international organisation immunity. However in the case of foreign state immunity, this approach was not taken by the European Court of Human Rights in Al-Adsani v United Kingdom (2001) nor by the House of Lords in Jones v Ministry of the Interior of Saudi Arabia (2006). Likewise, foreign state immunity would be granted under the UN State Immunity Convention of 2004, regardless of whether there are alternative means. This Convention, rather than enhancing the rule of law, could lead to its attenuation. That several of these cases involve immunity in cases of torture sharpens their sensitivity.
TL;DR: In this article, the authors argue that there are two different measures of gain-based damages for breach of contract: the Wrotham Park measure and the Blake measure, which are assessed by reference to the objective value of the benefit received by the defendant and the subjective gain.
Abstract: This article argues that there are two different measures of gain-based damages for breach of contract: the Wrotham Park measure and the Blake measure. The former is assessed by reference to the objective value of the benefit received by the defendant and the latter by reference to the defendant's subjective gain. In assessing Wrotham Park damages the courts apply a fixed formula, determining the price that a reasonable person in the position of the claimant might have demanded from the defendant at the time of breach for relaxing its rights under the contract. The Blake measure is different; it requires the defendant to disgorge the actual net profit received from the breach. Unlike the Wrotham Park measure, it deals only with positive and not negative gains. It is also limited by the doctrine of causation so that only those gains that are ‘directly occasioned’ by the breach are recoverable.