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Encyclopedia > Damages
Civil Procedure
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In law, damages refers to the money paid or awarded to a claimant (as it is known in the UK) or plaintiff (in the US) following their successful claim in a civil action. Civil procedure is the body of law that sets out the process that courts will follow when hearing cases of a civil nature (a civil action). These rules govern how a lawsuit or case may be commenced, what kind of service of process is required, the types of pleadings or... The Federal Rules of Civil Procedure (FRCP) govern civil procedure in the United States district courts, or more simply, court procedures for civil suits. ... The Civil Procedure Rules 1998 came into force in England & Wales on 26 April 1999, largely replacing and significantly overhauling the previous Rules of the Supreme Court (applicable to the High Court of Justice) and the County Court Rules. ... Civil procedure doctrines are rules developed by case law as opposed to being set down in codes or legislation, which, together with Court Rules / Codes, define the steps that a person involved in a civil lawsuit can, may, or can not take. ... In law, jurisdiction (from the Latin jus, juris meaning law and dicere meaning to speak) is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area... Subject matter jurisdiction is a legal term used in civil procedure to indicate that a case must be entered in the proper court of law based on the nature of the claim. ... Personal jurisdiction, jurisdiction of (or over) the person, or jurisdiction in personam is the power of a court to require a party (usually the defendant) or a witness to come before the court. ... Proper venue is one requirement for a court to be able to hear a case. ... A change of venue is the legal term for moving a trial to a new location. ... Forum non conveniens is Latin for inconvenient forum or inappropriate forum. ... In the United States, removal jurisdiction refers to the power of a defendant to move a lawsuit filed in state court to the Federal district court of the original courts district. ... In the law, a pleading is one of the papers filed with a court in a civil action, such as a complaint, a demurrer, or an answer. ... Service of process is the procedure employed to give legal notice to a person (defendant etc. ... Each state has process serving laws, or Rules of Civil Procedure, that govern civil procedure in their courts, or more simply, court procedures for civil suits in their state. ... In general use, a complaint is an expression of displeasure, such as poor service at a store, or from a local government, for example. ... In the law, a cause of action is a recognized kind of legal claim that a plaintiff pleads or alleges in a complaint to start a lawsuit. ... In law, a class action is an equitable procedural device used in litigation for determining the rights of and remedies, if any, for large numbers of people whose cases involve common questions of law and fact. ... The U.S. Class Action Fairness Act of 2005, 28 U.S.C. Sections 1332(d), 1453, and 1711-1715, grants federal courts original jurisdiction over certain mass actions and class actions (forms of civil action) in which the amount in controversy exceeds $5 million, and any of the members... In common law civil procedure, a demurrer is a pleading by the defendant that contests the legal sufficiency of the complaint. ... In the common law, an answer is the first pleading by a defendant, usually filed and served upon the plaintiff within a certain strict time limit after a civil complaint or criminal information or indictment has been served upon the defendant. ... An affirmative defense is a defense used in litigation between private parties in common law jurisdictions. ... The reply is a response by plaintiff to defedants answer. ... A Counterclaim is made by the defendant to a civil procedure, in a main actions against the plaintiff or against the plaintiff and other persons. ... A cross-claim is a claim brought against a co-party in the same side of a lawsuit. ... To meet Wikipedias quality standards, this article or section may require cleanup. ... Interpleader is a device allowed in U.S. civil litigation. ... In law, discovery is the pre-trial phase in a lawsuit in which each party through the law of civil procedure can request documents and other evidence from other parties or can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for... In law, interrogatories are a formal set of written questions propounded by one litigant and required to be answered by an adversary, in order to clarify matters of evidence and help to determine in advance what facts will be presented at any trial in the case. ... Deposition is a word used in many fields to describe different processes: In law, deposition is the taking of testimony outside of court. ... Default judgment is a binding judgment in favor of the plaintiff when the defendant has not responded to a summons or has failed to appear before a court. ... Summary judgment in U.S. legal practice is a judgment awarded by the court prior to trial, based upon the courts finding that: (1) there are no issues of material fact requiring a trial for their resolution, and (2) in applying the law to the undisputed facts, one party... Voluntary dismissal is when a law suit is terminated by request of the plaintiff (the party originally bringing the suit to court). ... Involuntary dismissal is the termination of a court case despite the plaintiffs objection. ... In law there are two main meanings of the word settlement. ... In legal parlance, a trial is an event in which parties to a dispute present information (in the form of evidence) in a formal setting, usually a court, before a judge, jury, or other designated finder of fact, in order to achieve a resolution to their dispute. ... A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. ... A plaintiff, also known as a claimant or complainant, is the party who initiates a lawsuit (also known as an action) before a court. ... A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. ... This article or section does not cite its references or sources. ... The phrase voir dire derives from Middle French; in modern English it is interpreted to mean speak the truth and generally refers to the process by which prospective jurors are questioned about their backgrounds and potential biases before being invited to sit on a jury. ... In the common law, burden of proof is the obligation to prove allegations which are presented in a legal action. ... A judgment or judgement (see spelling note below), in a legal context, is synonymous with the formal decision made by a court following a lawsuit. ... Judgment as a matter of law(JMOL) is a motion made by a party, during trial, claiming the opposing party has insufficient evidence to reasonably support its case. ... Renewed judgment as a matter of law (JMOL) is the partner of judgment as a matter of law in American Federal courts. ... Judgment notwithstanding the verdict, or J.N.O.V. for short (English Judgment + Latin Non Obstante Veredicto) is the practice in American courts whereby the presiding judge in a civil case may overrule the decision of a jury and reverse or amend their verdict. ... In law, a motion to set aside judgment is an application to overturn or set aside a courts judgment, verdict or other final ruling in a case. ... It has been suggested that this article or section be merged with Trial de novo. ... In law, a Judicial remedy is the means by which a court, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes some other court order. ... An injunction is an equitable remedy in the form of a court order that either prohibits or compels (restrains or enjoins) a party from continuing a particular activity. ... Attorneys fees or attorneys fees are the costs of legal representation that an attorneys client or a party to a lawsuit incurs. ... The American Rule is a rule regarding assessment of attorneys fees arising out of litigation. ... The English Rule is a rule regarding assessment of attorneys fees arising out of litigation. ... A declaratory judgment is a judgment of a court which declares what rights each party in a dispute should have, but does not order any action or result in any legal damages. ... An appeal is the act or fact of challenging a judicially cognizable and binding judgment to a higher judicial authority. ... A writ of mandamus or simply mandamus, which means we order in Latin, is the name of one of the prerogative writs and is a court order directing someone, most frequently a government official, to perform a specified act. ... This law-related article does not cite its references or sources. ... The stela of King Hammurabi depicts the god Shamash revealing a code of laws to the king. ... The plaintiff, claimant, or complainant is the party initiating a lawsuit, (also known as an action). ... A plaintiff, also known as a claimant or complainant, is the party who initiates a lawsuit (also known as an action) before a court. ... A lawsuit is a civil action brought before a court in which the party commencing the action, the plaintiff, seeks a legal remedy. ...


Damages are paid, depending on one's perspective, to compensate the claimant for harm suffered or to enable the claimant to have monetary revenge. These are known as compensatory damages. There may - on occasions - be situations where other types of damages are awarded. These are also set out below.

Contents

Compensatory damages

Breach of contract

Following a breach of contract by the defendant, the most common approach taken by the judge is to award the sum which would restore the injured party to the economic position that he or she expected from performance of the promise or promises (known as an "expectation measure" or "benefit-of-the-bargain" measure of damages). A contract is a promise or an agreement made of a set of promises. ...


When it is either not possible or desirable to award damages measured in that way, a court may award money damages designed to restore the injured party to the economic position that he or she had occupied at the time the contract was entered (known as the "reliance measure"), or designed to prevent the breaching party from being unjustly enriched ("restitution") (see below).


Some contracts contain a clause whereby the parties agree in advance the amount of damages to be paid to one party if the other party should breach the contract. This is termed Liquidated damages. Under the common law, a liquidated damages clause will not be enforced if the purpose of the term is solely to punish a breach of contract (in this case it is termed penal damages). The clause will however be enforceable if it is a genuine attempt to pre-quantify a loss. Many clauses which are found to be penal are expressed as liquidated damages clauses but are seen by courts as excessive and thus invalid. Liquidated damages is a term use in the law of contracts to describe a contractual term which establishes damages to be paid to one party if the other party should breach the contract. ... Penal damages are best seen as quantitatively excessive liquidated damages and are invalid under the common law. ...


Tort

Damages in tort are generally awarded to place the claimant in the position he would have been had the tort not taken place. Damages in tort are quantified under 2 headings: general damages and special damages. This article or section does not cite its references or sources. ...


General damages compensates the claimant for the non-monetary aspects of the specific harm suffered. This is usually termed 'pain, suffering and loss of amenity'. Examples of this include physical or emotional pain and suffering, loss of companionship, loss of consortium, disfigurement, loss of reputation, loss or impairment of mental or physical capacity, loss of enjoyment of life, etc. This is not easily quantifiable, and depends on the individual circumstances of the claimant. Judges in the UK base the award on damages awarded in similar previous cases. For example, an accident in which the claimant has lost the loss of both legs and for which the defendant was legally responsible, will typically attract general damages (at 2006) in the region of £125,000 - £145,000. A list of this are contained in a reference book known as 'Kemp & Kemp'. [1]] Loss of consortium is a legal term that refers to the deprivation of care and affection, often sexual, in a (usually spousal) relationship. ...


General damages are generally awarded only in claims brought by individuals, when they have suffered personal harm. Examples would be personal injury (following the tort of negligence by the defendant), or in the tort of defamation.


Special damages compensate the claimant for the quantifiable monetary losses suffered by the plaintiff. For example, extra costs, repair or replacement of damaged property, lost earnings (both historically and in the future), loss of irreplaceable items, and additional domestic costs etc. They are seen in both personal and commercial actions.


Special damages can include direct losses (such as amounts the claimant had to spend to try to mitigate problems) and consequential or economic losses resulting from lost profits in a business.


Direct losses and consequential losses

Special damages are sometimes divided into direct losses, and consequential or economic losses.


Direct losses include the costs needed to remedy problems and put things right. The largest element is likely to be the reinstatement of property damage. Take for example a factory which was burnt down by the negligence of a contractor. The claimant would be entitled to the direct costs required to rebuild the factory and replace the damaged machinery.


The claimant would also be entitled to any consequential losses. These are the lost profits that the claimant could have been expected to make in the period whilst the factory was closed and rebuilt.


Comparing damages for breach of contract and damages in tort

Damages in tort are generally awarded to place the claimant in the position he would have been had the tort not taken place. Damages for breach of contract are generally awarded to place the claimant in the position he would have been had the contract not been breached. This can often result in a different measure of damages. In cases where it is possible to frame a claim in either contract or tort, it is necessary to be aware of what gives the best outcome.


If the transaction was a ‘good bargain’ contract generally gives a better result for the claimant.


As an example, Fred sells Bob a watch for £100. Fred tells Bob it is an antique Rolex. In fact it is a fake, worth £50. If it had been a genuine antique Rolex it would be worth £500. Fred is in breach of contract and could be sued. In contract, Bob is entitled to an item worth £500, but he has only got one worth £50. His damages are £450. Fred also induced Bob to enter into the contract through a misrepresentation (a tort). If Bob sues in tort, he is entitled to damages put himself back to the same financial position place he would have been in had the misrepresentation not been made. He would clearly not have entered into the contract knowing the watch was fake, and is entitled to his £100 back. Thus his damages in tort are £100.


If the transaction was a ‘bad bargain’, tort generally gives a better result for the claimant. If in the above example Bob had overpaid, paying £750 for the watch, his damages in contract would still be £450 (giving him the item he contracted to buy), however in tort damages are ££700. This is because damages in tort put him in the position he would have been in had the tort not taken place, and are calculated as his money back (£750) less the value of what he actually got (£50).


Forseeability and remoteness

Damages are likely to be limited to those reasonably foreseeable by the defendant. If a defendant could not reasonably have foreseen that someone might be hurt by his or her actions, then there may be no liability. This is known as remoteness. In the English law of negligence, the test of causation not only requires that the defendant was the cause in fact, but also requires that the loss or damage sustained by the claimant was not too remote. ...


An exception is damages for fraudulent misrepresentation when all damages suffered by the claimant are claimable. In contract law, a misrepresentation is a false statement of fact made by one party to another party and has the effect of inducing that party into the contract. ...


Quantifying losses in practice

It may be useful for the lawyuioyyjhlghjgkfhgjcfhguyrgtrhguirhgfkjuhgvjfcjhgjdfhiusdhfjkrehbngkjfhgdxbfdkfnhjfdnvjfkfvhfdjkvnkdvhnmvnkjdvjkfjgfgkjehfjkjghhtyers for the plaintiff and/or the defendant to employ forensic accountants or forensic economists to give evidence on the value of the loss. In this case, they may be called upon to give opinion evidence as an expert witness. Forensic accounting is the specialty practice area of accounting that describes engagements which result from real or anticipated civil or criminal litigation. ... Please wikify (format) this article as suggested in the Guide to layout and the Manual of Style. ... An expert witness is a witness, who by virtue of education, or profession, or experience, is believed to have special knowledge of his subject beyond that of the average person, sufficient that others may officially (and legally) rely upon his opinion. ...


Statutory damuiyotkjlghnmglhkjyhtihyijmioyij7uojuytjhicuofucidggbjnngf vjnkdxf gvlkmvfklb f,bnkjcvnbkbnkvnbmvcb v,cmbgfkkgbjmgkfbjnjlnbkmklbgmkmbgages

Statutory damages are laid down in law. Mere violation of the law can entitle the victim to a statutory award. Statutory damages are pre-established damages for cases where calculating a correct sum is deemed difficult. ...


The possible remedies for misrepresentation for example are codified in the Misrepresentation Act 1967 u are the uglyest person. In contract law, a misrepresentation is a false statement of fact made by one party to another party and has the effect of inducing that party into the contract. ...


Punitive damages

Main article: Punitive damages

Generally, punitive damages, which are termed exemplary damages in the United Kingdom, are not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff. Punitive damages are awarded only in special cases where conduct was egregiously invidious, and are over and above the amount of compensatory damages. Great judicial restraint is expected to be exercised in their application. In the United States punitive damages awards are subject to the limitations imposed by the due process of law clauses of the Fifth and Fourteenth Amendments to the United States Constitution. Punitive damages are damages awarded to a successful plaintiff in a civil action, over and above the amount of compensatory damages, to: punish the conduct of the civil defendant; deter the civil defendant from committing the invidious act again; and deter others from doing the same thing. ... Due process of law is a legal concept that ensures the government will respect all of a persons legal rights instead of just some or most of those legal rights, when the government deprives a person of life, liberty, or property. ... Amendment V (the Fifth Amendment) of the United States Constitution, which is part of the Bill of Rights, is related to legal procedure. ... The Fourteenth Amendment to the United States Constitution is one of the post-Civil War amendments and it includes the Due Process and Equal Protection Clauses. ... The United States Constitution is the supreme law of the United States of America. ...


In England and Wales, exemplary damages are limited to the circumstances set out by Lord Patrick Devlin in the leading case of Rookes v. Barnard. They are: Motto: (French for God and my right) Anthem: Multiple unofficial anthems Capital London Largest city London Official language(s) English (de facto) Government Constitutional monarchy  - Queen Queen Elizabeth II  - Prime Minister Tony Blair MP Unification    - by Athelstan AD 927  Area    - Total 130,395 km² (1st in UK)   50,346 sq... Motto: (Welsh for Wales forever) Anthem: Hen Wlad Fy Nhadau Capital Cardiff Largest city Cardiff Official language(s) English, Welsh Government Constitutional monarchy  - Queen Queen Elizabeth II  - Prime Minister Tony Blair MP  - First Minister Rhodri Morgan AM Unification    - by Gruffudd ap Llywelyn 1056  Area    - Total 20,779 km² (3rd in... Lord Patrick Devlin (1905 - 1992) was an outstanding lawyer, judge, and jurist of the United Kingdom in the second half of the 20th century. ...

  1. Oppressive, arbitrary or unconstitutional actions by the servants of government.
  2. Where the defendant's conduct was 'calculated' to make a profit for himself.
  3. Where a statute expressly authorises the same.

Rookes v Barnard has been much criticised and has not been followed in Canada or Australia or by the Privy Council. A privy council is a body that advises the head of state of a nation, especially in a monarchy. ...


Restitutionary or disgorgement damages

In certain areas of the law another head of damages has long been available, whereby the defendant is made to give up the profits made through the civil wrong in restitution. The plaintiff thereby gains damages which are not measured by reference to any loss sustained. In some areas of the law this heading of damages is uncontroversial; most particularly intellectual property rights and breach of fiduciary relationship. Restitution is the name given to a form of legal relief in which the plaintiff recovers something from the defendant that belongs, or should belong, to the plaintiff. ... In law, intellectual property (IP) is an umbrella term for various legal entitlements which attach to certain types of information, ideas, or other intangibles in their expressed form. ...


In England and Wales the House of Lords case of Attorney-General v. Blake opened up the possibility of restitutionary damages for breach of contract. In this case the profits made by a defecting spy, George Blake, for the publication of his book, were awarded to the British Government for breach of contract. The case has been followed in English courts, but the situations in which restitutionary damages will be available remain unclear. This article is about the British House of Lords. ... George Blake (born Georg Behar, November 11, 1922) is a former British spy who was actually a double agent for the Soviets. ...


The basis for restitutionary damages is much debated, but is usually seen as based on denying a wrongdoer any profit from his wrongdoing. The really difficult question, and one which is currently unanswered, relates to what wrongs should allow this remedy.


Nominal damages

On the other hand, nominal damages are very small damages awarded to show that the loss or harm suffered was technical rather than actual. Perhaps the most famous nominal damages award in modern times has been the $1 verdict against the National Football League (NFL) in the 1986 antitrust suit prosecuted by the United States Football League. Although the verdict was automatically trebled pursuant to antitrust law in the United States, the resulting $3 judgment was regarded as a victory for the NFL. Historically, one of the best known nominal damage awards was the farthing that the jury awarded to James Whistler in his libel suit against John Ruskin. In the English jurisdiction, nominal damages are generally fixed at £2. The National Football League (NFL) is the largest professional American football league, consisting of thirty-two teams from American cities and regions. ... The United States Football League was a professional American football league that played three seasons between 1983 and 1985. ... Antitrust is also the name of a movie, see Antitrust (film) Antitrust or competition laws are laws whose stated purpose is the promotion of economic and business competition by prohibiting anti-competitive behavior and unfair business practices. ... Farthing is an old word meaning a fourth or a quarter. ... This article or section does not cite its references or sources. ... James Abbott McNeill Whistler (July 14, 1834 - July 17, 1903) was an American painter and etcher. ... Upper: Steel-plate engraving of Ruskin as a young man, made circa 1845, scanned from print made circa 1895. ...


Many times a party that has been wronged but is not able to prove significant damages will sue for nominal damages. This is particularly common in cases involving alleged violations of constitutional rights, such as freedom of speech.


Legal costs

In addition to damages, the successful party is entitled to be awarded his reasonable legal costs that he spent during the case. This is the rule in most countries other than the United States. In the United States, a party generally is not entitled to its attorneys' fees or for hardships undergone during trial. See American rule. Attorneys fees or attorneys fees are the costs of legal representation that an attorneys client or a party to a lawsuit incurs. ... Under the American Rule, all parties to a lawsuit, even the prevailing party, must pay its attorneys fees. ...


History

Among the Saxons, a price called Weregeld was paid for homicide by the killer, in part to the family of the victim, in part to the local king. The famous parade helmet found at Sutton Hoo, probably belonging to King Raedwald of East Anglia circa 625. ... Weregild (Alternative spellings: wergild, wergeld, weregeld, etc. ... Etymology: Latin homicidium, from homo- human being + caedere- to cut, kill Homicide is the intentional or negligent killing of another human being by one or more persons. ...


See also


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Damages, in a legal sense, is the sum of money the law imposes for a breach of some duty or violation of some right.
Compensatory damages, like the name suggests, are intended to compensate the injured party for his loss or injury.
It is generally recognized, for instance, that punitive damages are not available for breaches of contract except when it is proven that the breach was wanton, willful and deliberate.
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