ABSTRACT

One way of balancing the public and private interest that can arise in cases like Miller v Jackson is for the court to use its discretionary power to award damages in lieu of an injunction or specific performance. The history of this procedural power has been summarised by Sir Thomas Bingham MR in Jaggard v Sawyer:11

A similar power is to be found with respect to the equitable remedy of rescission in so far as it might be applicable in cases of non-fraudulent misrepresentation. According to s 2(2) of the Misrepresentation Act 1967, a court can refuse rescission in non-fraudulent misrepresentation cases and award damages in lieu. It can do this ‘if of opinion that it would be equitable to do so, having regard to the nature of the misrepresentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that rescission would cause to the other party’. Equity may not have an original jurisdiction to award damages, but it has a considerable statutory one that operates through some of its non-monetary remedies.