Sirko Harder, ‘Evaluating a Lost Opportunity to Sue’

Where a defendant’s wrong deprived the plaintiff of an opportunity to bring an action and obtain a judgment against a third party, the court deciding on the defendant’s liability will determine how the action against the third party would have been decided rather than forming a view on whether the plaintiff ought to have succeeded. The plaintiff’s loss will be assessed by reference to the degree of probability that the hypothetical action would have succeeded. Two figures must thus be determined: the likely amount that the plaintiff would have been awarded had an action against the third party been successfully brought, and the probability that such an action would have been successful. This article explores the principles governing the determination of those two figures. In addition, this article investigates how benefits obtained by the plaintiff as a result of the third party’s wrong impact upon the defendant’s liability.

Sirko Harder, Evaluating a Lost Opportunity to Sue. Bond Law Review, vol 28 (2016), issue 1.

First posted 2016-07-13 11:43:22

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