Election of Remedies

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Sometimes, claimants have available to them more than one possible remedy. This is true both where they can plead and prove multiple causes of action, as well as when they have pleaded and proved only one. In some cases, claimants can obtain both remedies. For example, a claimant is able both to rescind a contract for misrepresentation and obtain damages for consequential losses on the basis that the misrepresentation was fraudulent (Newbigging v Adam, per Bowen). In other cases, claimants can obtain only one. For example, a claimant cannot claim damages for a breach of a warranted pre-contractual representation as well as rescind the contract for the falsity of that representation (Newbigging).The cases have not systematically explained the principles behind when and why a claimant must elect between remedies - instead (often) relying on the equivocal phrase "double recovery". This gap has not been filled by the secondary literature: surprisingly, for instance, there is no chapter in McGregor on Damages on election. Indeed, the leading theoretical explanation comes in a single article by Watterson: the central claim being that claimants must choose remedies because one remedy, directed at one aim, may indirectly achieve the aims of another - it is unnecessary to award both to that extent. Yet, without more development, this "excessive remedial cumulation" thesis does not neatly explain the cases. Consider two examples. Returning, on the one hand, to the cases already mentioned, why are damages and rescission sometimes an "excessive remedial cumulation" and sometimes not? One might think that since the right to rescind and the right to damages arise from the same wrong these remedies should indirectly achieve the aims of the other (Goldrei v Sinclair, per Bankes). Why, on the other hand, are profit-stripping awards and compensatory damages always an "excessive remedial cumulation" (Tang Man Sit)? It is difficult to see how profit-stripping awards (which do not arise for a wrong) indirectly achieve the aims of compensation for a wrong (Birks).This DPhil project seeks to rationalise the election of remedies systematically for the first time. The methodology is "interpretative" in that the project seeks to produce a theory that best explains the law (in terms of fit, coherence, desirability, etc). The project will broadly be structured in two parts. First, it will systematically be investigated when (as a matter of doctrine) the claimant must elect between multiple remedies: can a claimant combine compensation and gain-based awards? Rescission and gain-based awards? Exemplary damages and compensation? Etc. Second, various theoretical explanations as to why the claimant must elect will then be discussed. One possibility, for example, is that election of remedies is grounded on policy: no election is required in fraudulent misrepresentation to discourage fraud. But, given that the courts do not reason in this way, a better (provisional) theory might be that the secondary remedial rights arising from each remedy depend on the underlying primary rights and duties. It may, therefore, be the case that there is no general principle explaining when multiple remedies are available. This DPhil project is not important just because the election of remedies is descriptively and normatively uncertain - after all, much of the law is. This area "deserves...attention" because it is vital in practice that claimants know which remedies are available and why (Burrows). "As the law stands, potential litigants, their lawyers, and courts have no satisfactory basis on which to decide the proper relationship between the remedies" (Watterson). That was the position when Watterson wrote his article in 2003 and (unacceptably) it remains the position in 2023. This DPhil project will comprehensively change that.