“… he takes something for nothing, for which the owner was entitled to require payment”
“25. In tort, although damages may in some circumstances be awarded for punitive purposes, the general principle is that damages are compensatory. As Lord Blackburn said in Livingstone v Rawyards Coal Co(1880) 5 App Cas 25 , 39: I do not think there is any divergence of opinion as to its being a general rule that, where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. 26. Lord Blackburn’s principle can readily be applied in situations where some tangible loss has been sustained: for example, where real property has been damaged or taken by a trespasser (as in the Livingstone case itself), or where goods have been converted. Its application is less obvious in situations where there has been an invasion of rights to tangible moveable or immoveable property, but there has been no pecuniary loss or physical damage to the property in question. Nevertheless, where a trespasser has made valuable use of someone else’s land, without causing any diminution in its value, the landowner has been held to be entitled to damages measured as what a reasonable person would have paid for the right of user: see, for example, Whitwham v Westminster Brymbo Coal and Coke Co[1896] 2 Ch 538 . A similar approach has been adopted in cases of detinue, such as Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd[1952] 2 QB 246 . Damages are also available on a similar basis for patent infringement and breaches of other intellectual property rights. 27. The basis of the award of damages in cases of this kind was considered by Lord Shaw of Dunfermline in Watson, Laidlaw & Co Ltd v Pott, Cassels & Williamson 1914 SC (HL) 18; 31 RPC 104. The case concerned the sale of machines which infringed the pursuers patent. The issue in dispute was whether the pursuers were entitled to recover damages for sales which had been made by the defenders in a territory where the pursuers could not themselves have traded, and which, moreover, the defenders would have made even if the machines had not incorporated the infringing part. It was held that they were so entitled. Lord Shaw contrasted the principle underlying the assessment of “damages in general”, whether in contract or in tort, which he described as the principle of restoration as he defined it, with a second principle of “price or hire” applicable not only to patent cases but “wherever an abstraction or invasion of property has occurred”: 1914 SC (HL) 18, 29 - 31. As he explained, this distinction was relevant to the case before him, since the restoration principle could not support a claim by a patentee relating to a section of trade in which, it was argued, he can have sustained no damage, because he would never have sold his patented articles within that section: p 30. 28. Lord Shaw described the second principle as follows, in a passage at p.31 subsequently quoted by Brightman J in the Wrotham Park Estate[1974] 1 WLR 798 , 813: “It is at this stage of the case, however, that a second principle comes into play. It is not exactly the principle of restoration, either directly or expressed through compensation, but it is the principle underlying price or hire. It plainly extends and I am inclined to think not infrequently extends to patent cases. But, indeed, it is not confined to them. For “wherever an abstraction or invasion of property has occurred”, then, unless such abstraction or invasion were to be sanctioned by law, the law ought to yield a recompense under the category or principle, as I say, either of price or of hire.”
“If A, being a liveryman, keeps his horse standing idle in the stable, and B, against his wish or without his knowledge, rides or drives it out, it is no answer to A for B to say: Against what loss do you want to be restored? I restore the horse. There is no loss. The horse is none the worse; it is the better for the exercise.”
“It is an established principle concerning the assessment of damages that a person who has wrongfully used another’s property without causing the latter any pecuniary loss may still be liable to that other for more than nominal damages. In general, he is liable to pay, as damages, a reasonable sum for the wrongful use he has made of the others property. The law has reached this conclusion by giving to the concept of loss or damage in such a case a wider meaning than merely financial loss calculated by comparing the property owners financial position after the wrongdoing with what it would have been had the wrongdoing never occurred. Furthermore, in such a case it is no answer for the wrongdoer to show that the property owner would probably not have used the property himself had the wrongdoer not done so. In The Mediana[1900] AC 113 , 117, Earl of Halsbury LC made the famous observation that a defendant who had deprived the plaintiff of one of the chairs in his room for 12 months could not diminish the damages by showing that the plaintiff did not usually sit upon that chair or that there were plenty of other chairs in the room.” 30. In these cases, the courts have treated user damages as providing compensation for loss, albeit not loss of a conventional kind. Where property is damaged, the loss suffered can be measured in terms of the cost of repair or the diminution in value, and damages can be assessed accordingly. Where on the other hand an unlawful use is made of property, and the right to control such use is a valuable asset, the owner suffers a loss of a different kind, which calls for a different method of assessing damages. In such circumstances, the person who makes wrongful use of the property prevents the owner from exercising his right to obtain the economic value of the use in question, and should therefore compensate him for the consequent loss. Put shortly, he takes something for nothing, for which the owner was entitled to require payment.” “It is at this stage of the case, however, that a second principle comes into play. It is not exactly the principle of restoration, either directly or expressed through compensation, but it is the principle underlying price or hire. It plainly extends and I am inclined to think not infrequently extends to patent cases. But, indeed, it is not confined to them. For “wherever an abstraction or invasion of property has occurred”, then, unless such abstraction or invasion were to be sanctioned by law, the law ought to yield a recompense under the category or principle, as I say, either of price or of hire.” “If A, being a liveryman, keeps his horse standing idle in the stable, and B, against his wish or without his knowledge, rides or drives it out, it is no answer to A for B to say: Against what loss do you want to be restored? I restore the horse. There is no loss. The horse is none the worse; it is the better for the exercise.” “It is an established principle concerning the assessment of damages that a person who has wrongfully used another’s property without causing the latter any pecuniary loss may still be liable to that other for more than nominal damages. In general, he is liable to pay, as damages, a reasonable sum for the wrongful use he has made of the others property. The law has reached this conclusion by giving to the concept of loss or damage in such a case a wider meaning than merely financial loss calculated by comparing the property owners financial position after the wrongdoing with what it would have been had the wrongdoing never occurred. Furthermore, in such a case it is no answer for the wrongdoer to show that the property owner would probably not have used the property himself had the wrongdoer not done so. In The Mediana[1900] AC 113 , 117, Earl of Halsbury LC made the famous observation that a defendant who had deprived the plaintiff of one of the chairs in his room for 12 months could not diminish the damages by showing that the plaintiff did not usually sit upon that chair or that there were plenty of other chairs in the room.”
“S.17 By making access to its platform contingent (or effectively contingent) on a new requirement that Users should give up not only their On-Facebook Data, but also Off-Facebook Data and without being paid for the latter data: a) Facebook was able to demand an unfairly high and abusive ‘price’ or ‘payment in kind’ (i.e. Users’ Off-Facebook Data) for the provision of social networking services; and/or b) Facebook offered an unfairly low and abusive purchase price (i.e. the provision of social networking services) for Users’ Off-Facebook Data. S.18. Whether Facebook’s collection of Off-Facebook Data is viewed as involving: (i) the charging of unfairly high price; or (ii) the payment of an unfairly low purchase price, the essential concern is the same: that Facebook’s collection of Off-Facebook Data as a condition of providing social networking services without a corresponding value transfer involves an unfair price (including taking into account the other side of the market involving advertisers) (the “Off-Facebook Data Price”). These two ways of articulating the unfair price abuse are closely related and do not constitute distinct alternatives:Section 18(2)(a) of the Competition Act 1998 and Article 102(a) TFEU refer expressly to “unfair purchase or selling prices.”
“S.19. The Class Representative contends that the Off-Facebook Data Price is unfair insofar as Facebook would have been unable to impose it under conditions of reasonably effective competition. In this regard, the Class Representative relies inter alia on the fact that: (i) under conditions of reasonably effective competition, Meta was only able to impose an on-Facebook data ‘price’ prior to the Claim Period; (ii) it was only when effective competition was eliminated that Meta switched from a price based on on-Facebook data to one based additionally on Off-Facebook Data. This provides a form of ‘before and after’ comparison of the kind frequently used in unfair pricing cases. Further and more particularly, the Class Representative relies on the flexible and adaptable United Brands legal framework on unfair pricing as follows in the circumstances of the present case.”
“Scott Morton 1 proposes to use a Nash bargaining model (a standard economic tool which is widely used in competition law contexts and to assess bargaining) as a benchmark for a counterfactual fair bargain. The Nash bargaining model determines how the surplus (or net economic value) generated by an agreement should be split between the parties. As Scott Morton 1 explains, this is a function of: (i) each party’s “threat point” or “outside option” (i.e. the profit or value absent the agreement); (ii) the “pie to be split” (i.e. the total incremental benefit of the agreement less the parties’ threat points); and (iii) each party’s “bargaining power” (also termed the “bargaining parameter”) which determines how the surplus will be split.”
“25. The CR's case on causation, including her pleaded counterfactual "fair bargain" is denied. Without prejudice to the generality of the foregoing denial: (a)… (b) In any event, the "fair bargain" counterfactual allegation is denied. In the counterfactual Meta would not have made any "monetary payment" to users as alleged or otherwise. The CR ignores the fact that there are no real-world examples of online attention platforms making "monetary payment" to its users. (c) Further and in any event, it is denied that the alleged "unfair trading condition" on its own could have resulted in any compensatory loss to users either as alleged or otherwise. 26. In the premises, and in any event, it is denied that the Class Members have suffered any pecuniary loss or damage as a result of the conduct alleged by the CR.”
“S.26A. Further or alternatively, it nevertheless wrongfully interfered with the Users’ valuable right to control the collection and/or use of their Off-Facebook Data. That being so, the Users are to be compensated for the loss of the value of the exercise of that right. That loss can be quantified by the use of the Nash bargaining model to assess the outcome of a hypothetical negotiation between Facebook, as a reasonable and willing buyer, and the Users, as reasonable and willing sellers, for permission to collect and use the Users’ Off-Facebook Data.”
“Further or alternatively, it is denied that the CR is entitled to recover user damages.”
“We are not beguiled by Meta’s suggestion that the facts are irrelevant and that this is a pure question of law such that we should “grasp the nettle”
“30. …Where property is damaged, the loss suffered can be measured in terms of the cost of repair or the diminution in value, and damages can be assessed accordingly. Where on the other hand an unlawful use is made of property, and the right to control such use is a valuable asset, the owner suffers a loss of a different kind, which calls for a different method of assessing damages. In such circumstances, the person who makes wrongful use of the property prevents the owner from exercising his right to obtain the economic value of the use in question, and should therefore compensate him for the consequent loss. Put shortly, he takes something for nothing, for which the owner was entitled to require payment.”
“120. The same principle [of user damages] has been applied in other cases of tortious competition [outside the intellectual property context], which involve no invasion of property rights unless property is so broadly defined as to encompass any right whatever. For example, confidential information is not property in the proper sense of the word, for there is no title against the world but only a personal right against the person owing the duty of confidence. However, a notional royalty (or its capitalised value) is commonly awarded as damages for breach of a duty not to misuse confidential information, whether that duty arises from contract or from equitable doctrines…”
‘In my speech in X and ors (minors) v Bedfordshire CC[1995] 3 All ER 353 at 372–373,[1995] 2 AC 633 at 740–741, with which the other members of the House agreed, I pointed out that unless it was possible to give a certain answer to the question whether the plaintiff ’s claim would succeed, the case was inappropriate for striking out. I further said that in an area of the law which was uncertain and developing (such as the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out. In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out.’
“[48] It might be thought that an assertion that the claim against Vedanta raised a novel and controversial issue in the common law of negligence made it inherently unsuitable for summary determination. It is well settled that difficult issues of law of that kind are best resolved once all the facts have been ascertained at a trial, rather than upon the necessarily abbreviated and hypothetical basis of pleadings or assumed facts.”
“3. The Tribunal expects experts to acknowledge and respond in a fair-minded manner to evidence and views that challenge their positions, changing their minds if appropriate, particularly where the facts change or new evidence emerges. The Tribunal also expects experts to engage constructively with one another and with the Tribunal, to assist the Tribunal to understand the differences between them and to help the Tribunal to make informed decisions. As part of that process, the experts may be asked by the Tribunal to address alternative hypotheses presented by the Tribunal.” “34. Experts are expected to remain open-minded and objective, and to assist the Tribunal by making concessions where it is reasonable to do so, rather than treating their cross examination as an exercise in advocacy or defending their reports at all costs.”
“…must be closely examined, in order to see whether a further exception ought to be made in this case”
“…the common law, however, is constantly being developed and adapted as social conditions change, and novelty by itself is not an answer to the present claim”
“I have, however, concluded that the analogy is unsound and that the application of the user principle in the case of the disturbance of a market right would not accord with the basic principles applicable to that cause of action. A market right confers a monopoly, as does a patent, but the protection which the law affords to the owner of a market right is limited to protecting him against being disturbed in the enjoyment of his right. If an unauthorised market is held without disturbing the lawful market, the owner of the lawful market has no remedy, either for damages or otherwise. In such an event there is no place for an award of damages to be assessed on the user principle. Thus, for example, if and in so long as the owner of the market right is currently not exercising or seeking to exercise his right, and is not holding a market at all, he has no cause of action against a person holding an off an unauthorised market, for in such a case he is not being disturbed in the enjoyment of his market right.”