Choosing one case from each year is not an easy task.  We have reached 2017 and I have selected two posts which relate to the same case.  A claimant sought damages of £15 million but failed to prove it had lost anything, it received nominal damages of £2.   The later judgment shows that the claimant had, along the way, turned down an offer of £1.5 million.


“The policy underlying Part 36 requires that the cost consequences should be visited on parties in Marathon’s position who, instead of taking a realistic attitude, open their mouths too wide.”



“The judgment of Mr Justice Leggatt in Marathon Asset Management LLP -v- Seddon [2017] EWHC 300 (Comm) has already attracted some publicity. It involved an award for £2 in nominal damages after the claimants had sought £15 million. It is a major example of a failure to prove damages.

“In circumstances where the misuse of confidential information by the defendants has neither caused Marathon to suffer any financial loss nor resulted in the defendants making any financial gain, it is hard to see how Marathon could be entitled to any remedy other than an award of nominal damages.”


  • The claimants had not suffered any loss as a result of the downloading of commercial information.
  • The judge rejected arguments that the claimants were entitled to damages on various hypothetical basis.
  • The court would not assess damages on the basis of the actual loss suffered when this approach had been expressly disavowed by the claimants.
  • The claimants received nominal damages of £1 from each defendant.


The claimants sought damages for the misuse of information which one of its founders had unlawfully obtained when he left the business.


A feature of this case is that the claimants did not allege that they had suffered a loss.

  1. The second main issue is what, if any, damages are payable by Mr Bridgeman and, if he is also liable, Mr Seddon. It is common ground that the files which Mr Seddon shared with Mr Bridgeman were never actually used after they left Marathon’s employment. Mr Bridgeman made some use of a few of the many other files which he copied and removed but it is not alleged that this caused Marathon any financial loss. Marathon’s case is that it does not matter what use was actually made of any of the files or that no loss has been shown: the defendants unlawfully took its confidential information and must pay for the value of what they took – which Marathon estimates at £15m. 
  2. Marathon asks the court to assess damages by estimating the price which Marathon could reasonably have charged the defendants for releasing them from the obligations of which they are in breach. Such damages are often referred to as “Wrotham Park damages” after the case of Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798 in which such a measure was first articulated. But, as with “Mareva injunctions” and “Anton Pillar orders”, a label based on the name of the case in which the remedy was originally granted is abstruse. Of the various alternative labels which have been suggested, I propose to use the term “licence fee damages”, which captures the basic idea that the damages represent a fee that would reasonably have been agreed between the parties to license the defendant’s wrongful activity.


The judge considered the position where a claimant had not, in fact, suffered any loss as a result of a breach.

The position in principle
  1. Before I discuss the authorities on which Marathon relies to support its claim for damages, I will start by considering the claim from first principles. It is axiomatic that the general object of an award of damages for a civil wrong is to compensate the claimant for injury caused by the defendant’s wrongful act. Such injury may consist of financial loss; or it may consist of non-financial injury of a kind for which the law provides monetary compensation.
  2. Sometimes when confidential information is misused, injury of a non-financial kind may be caused through, for example, invasion of the claimant’s privacy. The present case, however, is a commercial case brought by a commercial entity whose only interest in maintaining confidentiality in information about its business is financial. Marathon has not alleged or attempted to show that the unlawful copying of confidential information or any subsequent misuse of that information by the defendants caused Marathon to suffer any financial loss. It follows on the face of it that no injury has been sustained for which Marathon is entitled to be compensated in damages.
  3. There are circumstances (which I will consider soon) in which, instead of claiming compensation for financial loss or other compensable injury, a claimant may seek a remedy which requires the defendant to pay to the claimant a sum of money which represents all or part of a gain made by the defendant from its wrongful act. Again, in a commercial case of the present kind, if this approach is available, the relevant gain could only be financial. Again, however, Marathon has not alleged nor attempted to show that Mr Bridgeman or Mr Seddon (or for that matter any business in which they have been involved since leaving Marathon) has made any financial gain by misusing Marathon’s confidential information.
  4. In circumstances where the misuse of confidential information by the defendants has neither caused Marathon to suffer any financial loss nor resulted in the defendants making any financial gain, it is hard to see how Marathon could be entitled to any remedy other than an award of nominal damages.
  5. At the level of principle, counsel for Marathon have sought to justify a claim for substantial damages in three ways. First and foremost they have argued that “the principle of law is straightforward: if you take something, the law requires you to pay for it.” They contended that the conduct of the defendants in copying and retaining Marathon’s confidential files is analogous to the conversion or detention of goods and gives rise to a claim for damages representing the value of the information taken.
  6. Far from being straightforward, I do not think that this argument bears scrutiny. The analogy with the conversion of goods breaks down because, by copying electronic data, Mr Bridgeman did not deprive Marathon of anything. Marathon’s employees still had access to all of the information which was copied and their ability to use that information was unimpaired.[2] Nor can I accept that taking away a USB drive on which confidential information is stored is analogous to conversion of a cheque – another analogy which counsel for Marathon sought to draw. If a cheque is stolen and paid into the thief’s bank account, there is a transfer of money from the owner of the cheque to the thief. By contrast, when a record of information which A owes a duty to B to keep confidential is wrongfully copied by A, the act of copying does not make B any poorer or A any richer. It is only if and when A makes use of the information that there may be an impact on the wealth of either or both parties.
  7. Marathon’s case can be tested by asking what the position would be if, after copying Marathon’s files, Mr Bridgeman had thought better of his behaviour and had destroyed the USB drive on which they were stored or if he had put the USB drive in a drawer and never afterwards accessed the files. This is not a purely hypothetical example because it is in effect what happened in the case of the 33 files which Mr Seddon was jointly responsible for copying. In circumstances where these files were never subsequently accessed I do not see how it can be said that Mr Seddon’s wrongdoing made him any better off or Marathon any worse off.
  8. The second justification which Marathon gave for seeking an award of substantial damages was that, even though no actual financial loss or gain has been shown, by copying Marathon’s files onto USB drives which were retained on leaving Marathon’s employment, Mr Bridgeman (and, to the extent of his involvement, Mr Seddon) exposed Marathon to a risk of loss and acquired an opportunity for financial gain.
  9. This argument, in my view, is even more threadbare than the first. The law does not compensate people for being exposed to a risk of injury. If a man drives at high speed the wrong way round a roundabout putting the lives and safety of other people at risk, but by good fortune avoids an accident, he may be prosecuted and punished for dangerous driving; but the people whose safety he endangered cannot claim damages for having been exposed to a risk of injury. If the law were to recognise any such principle of compensation for exposure to risk, it is difficult to see where it would ever end. Equally, acquiring an opportunity to make a financial gain does not justify a remedy, if the opportunity is not in fact taken. Just as the law does not provide compensation for injuries which might have been but were not in fact suffered, courts do not order the surrender of hypothetical benefits which might have been but were not in fact gained.
  10. The third argument advanced by Marathon was an argument based on uncertainty. The point was made that, when files containing confidential information are unlawfully copied, it may be extremely difficult or practically impossible to identify what subsequent use has been made of the information and what, if any, detriment to the claimant or benefit to the defendant has resulted. In these circumstances, it was argued, it is a just solution to require the defendant to pay a sum which represents the value of the information, assessed at the time when the breach of duty occurred on the assumption that the information would thereafter be exploited to whatever extent the defendant chose to do so – without requiring the claimant to prove what use was actually made of the information and what financial consequences actually ensued.


The judgment examines in details the various ways in which the claimants presented their claim for damages.  Each was rejected.


Should damages be assessed on an alternative basis?
    1. Having rejected the case on damages put forward by Marathon, I have considered whether – despite the fact that no alternative case has been advanced – I should nevertheless attempt to value the use which Mr Bridgeman actually made of Marathon’s confidential information and make an award of damages on that basis. No such award could be justified in Mr Seddon’s case, since the only breach of duty for which I have found him liable consisted in helping to copy some files which were never afterwards accessed. But Mr Bridgeman did make some subsequent use of a few of the many files which he unlawfully copied and removed. There is no scientific way to attribute an economic value to the benefit of such use. But that need not prevent a court from making an assessment by applying what Lord Shaw described in a case mentioned earlier as “the exercise of a sound imagination and the practice of the broad axe”: see Watson, Laidlaw & Co Ltd v Pott, Cassels & Williamson [1914] SC (HL) 18 at 29-30. Nicholls J did as much in Universal Thermosystems Ltd v Hibben [1992] 1 WLR 840 when, in calculating damages payable to the defendants he deducted an amount on account of the time, trouble and expense which they had saved themselves by making wrongful use of the plaintiffs’ confidential information.
    2. Had Marathon advanced an alternative case of this kind, such an exercise could have been carried out. But Marathon, as I have emphasised, chose not to advance such a case and instead went all out for what the Court of Appeal in a similar situation described as “jackpot damages”: see Senate Electrical Wholesalers Ltd v Alcatel Submarine Networks Ltd [1999] 2 Lloyd’s Rep 423, 435. I have concluded that, in these circumstances, it would be wrong for me to award damages assessed on a basis which Marathon has expressly disavowed. Apart from anything else, had such an alternative case been advanced, it would have been necessary for Marathon to give Mr Bridgeman an opportunity to answer it in cross-examination and his counsel an opportunity to do so in submissions. It might also have affected what, if any, offer of settlement Mr Bridgeman was prepared to make, not least in order to protect himself against liability for Marathon’s costs. Given the way that Marathon’s case has been presented, I do not think it would be just to adopt any other approach.
  1. In the result, Mr Bridgeman has admitted liability and I have found that Mr Seddon is also liable for breaches of duties of confidence owed to Marathon in contract and under the general law to the extent summarised in paragraph 142 of this judgment. But I have rejected the (only) basis on which Marathon has claimed substantial damages. Marathon has therefore missed the jackpot and is entitled only to nominal damages. Judgment will be entered for Marathon against Mr Bridgeman and Mr Seddon, in each case for a sum of £1.



The second post followed the subsequent decision on costs.   The claimant had recovered £1 in relation to each breach.  It transpired that the claimant had turned down Part 36 offers of £1.5 million.    The claimant was only entitled to nominal damages, however the Part 36 offer meant that the court ordered all the costs be paid (in contrast with the situation prior to the offer).


We looked at the decision of Mr Justice Leggatt in Marathon Asset Management LLP -v- Seddon [2017] EWHC 300 (Comm) in an earlier post.   The judge held that the defendants were in breach but that the claimants had suffered no loss. Consequently nominal damages of £2  were ordered. In a decision at [2017] EWHC 479  (Comm) the judge considers the costs consequences.

“The policy underlying Part 36 requires that the cost consequences should be visited on parties in Marathon’s position who, instead of taking a realistic attitude, open their mouths too wide.”



  • When a claimant is awarded nominal damages the defendant should be regarded as the winning party for the purposes of costs liability.
  • In this case there were factors which justified the defendants paying some of the claimants costs of the initial investigation and allowing one claimant only 50% of his costs for a period.
  • The situation changed outright for the period after the defendants had made a Part 36 offer. The offer (of £1.5 million) was far more than the claimants recovered (£2) and there was no reason why the claimants should not pay all the defendants costs for the relevant period after the expiry of the offer.


The judge held that the award of nominal damages meant that the defendants were the winning party.
“In a commercial case such as this a judgment for only nominal damages is a defeat. The position was trenchantly put by Jacob J in Hyde Park Residence Ltd v Yelland [1999] RPC 655 at 670, when he said:
“It seems to me that the whole question of nominal damages is at the end of this century far too legalistic. A plaintiff who recovers only nominal damages has in reality lost and in reality the defendant has established a complete defence.”
This is not a case where it can be said that money was not the object and that the claim was brought in order to establish or protect some legal right. Marathon’s sole purpose in pursuing a claim for misuse of confidential information after the files containing the information had been handed back was to seek to recover substantial damages. That attempt failed. I also agree with counsel for Mr Seddon that, if Marathon had pursued the claim seeking only nominal damages, the claim could properly have been struck out as an abuse of process on the ground that dealing with it would be a waste of court time and resources.
I therefore approach the question of costs on the footing that the defendants are the successful parties. Although the general rule set out in CPR 44.2(2)(a) requires Marathon to pay the defendants’ costs in this event, I nevertheless need to consider whether there are circumstances which justify a different order. I will consider the position of each defendant separately.”


In awarding some costs to the claimant the judge was therefore making a different order.  However the amount the claimants were awarded were only for the initial period of investigation.

Mr Bridgeman
  1. In the case of Mr Bridgeman, it is necessary to remember that the claim arose from his wrongdoing in copying onto USB drives and taking with him when he left Marathon’s employment in December 2012 thousands of confidential documents in breach of duties owed to Marathon under his contract of employment and under the general law. Furthermore, when asked by Marathon’s solicitors at the end of February 2013 to confirm that he had not taken or removed or retained any confidential documentation, his response was to lie and falsely assert that he had not done so.[1] Only after receiving draft particulars of claim in June 2013 did Mr Bridgeman admit that he had taken documents and arrange to return them. Although most of the files were delivered up on 8 July 2013, the file containing Mr Bridgeman’s email account was not delivered up until September 2013, after this action was begun.[2] In these circumstances I think it right to hold Mr Bridgeman responsible for the costs incurred by Marathon in carrying out the investigations which led to the misuse claim and in initiating that claim.
  2. The position changed, in my view, once Mr Bridgeman had returned all the files which he had taken and had also admitted liability for breach of contract – which he did on 24 January 2014. From then on, the dispute was all about the quantum of damages.
  3. Marathon has argued that, even after Mr Bridgeman had returned the files and admitted liability, it had a legitimate interest in investigating what use had been made of its confidential information. The point is made on Marathon’s behalf that the extent of such use was not within Marathon’s knowledge and could only be discovered by means of an extensive and expensive forensic inquiry which continued throughout the course of these proceedings. I do not accept, however, that this justifies departing from the general rule about liability for costs. A party which pursues a claim for damages for misuse of confidential information without evidence of any significant misuse but in the expectation that such evidence will or may be uncovered through the litigation process takes the risk that such evidence will not be uncovered because it does not in fact exist. In the result, the forensic inquiry in this case established that Mr Bridgeman’s claim that he had made very little use of the documents he took was substantially true.[3] In any case, I do not think that Marathon can reasonably seek to justify its pursuit of the misuse claim on the basis that such an inquiry was necessary when, as recorded in the main judgment,[4] Marathon consistently maintained throughout the proceedings that the extent of any actual use of information by the defendants was irrelevant to its claim.
  4. In these circumstances I consider that the just order to make is that Mr Bridgeman should pay Marathon’s costs of the misuse claim incurred prior to 24 January 2014 but that Mr Bridgeman’s costs of defending the claim after that date should be paid by Marathon.
  5. I have reached that conclusion without bringing into account the fact that on 3 February 2016 Mr Bridgeman made an offer under CPR Part 36 jointly with Mr Seddon to settle the misuse claim by paying Marathon a sum of £1.5m.[5] The date on which the relevant period for acceptance of the offer expired was 24 February 2016. In circumstances where Marathon has failed to obtain a judgment more advantageous than the offer, CPR 36.17(3) requires the court, unless it considers it unjust to do so, to order that the defendants are entitled to costs from the date on which the relevant period expired together with interest on those costs. It follows from the conclusions I have already reached that I do not consider it unjust to make such an order. As regards the period from 25 February 2016 onwards, therefore, there is an added reason to make the order for costs that I think it right to make in any event.


Mr Seddon
    1. I have found that Mr Seddon was in breach of duties owed to Marathon in copying 33 files to a shared drive on 29 August 2012 with the intention that Mr Bridgeman should save the files on a USB drive for potential use after they left Marathon. However, I rejected Marathon’s case that Mr Seddon is liable for the copying or removal of other files by Mr Bridgeman. I also found that Mr Seddon never used or had in his personal possession any of the 33 files or any other files which Mr Bridgeman saved to USB drives and retained on leaving Marathon.[6] In these circumstances I do not think it right to hold Mr Seddon responsible along with Mr Bridgeman for Marathon’s costs of investigating the removal of confidential files and securing their delivery up.
    2. Nevertheless, unlike Mr Bridgeman, who admitted liability at an early stage, Mr Seddon never made any admission of liability and denied throughout the proceedings that he had participated in the copying and removal of any confidential files. As a result, a substantial amount of evidence and time at the trial was taken up in dealing with a factual dispute about Mr Seddon’s knowledge and actions on 29 August 2012. I identified this issue in the main judgment as one of the two main issues contested at the trial.[7] I have decided the issue in Marathon’s favour and found that Mr Seddon’s evidence about the relevant events was false.[8]
    3. In these circumstances, in exercising the court’s discretion under CPR 44.2(2), I would in principle have thought it right not merely to disallow Mr Seddon’s costs of unreasonably contesting the issue of his liability for copying the 33 files but to order him to pay Marathon’s costs of that issue. Implementing such an issue-based order would, however, cause considerable complication and cost. Not only would it potentially require a detailed assessment to be undertaken of Marathon’s costs of the misuse claim which would otherwise be unnecessary, but it would require a close analysis to disaggregate the costs referable to this issue from the other costs incurred by Marathon and by Mr Seddon in contesting the misuse claim. In my view, it is practicable and far preferable to avoid these difficulties by instead reducing Mr Seddon’s entitlement to costs by a proportion which reflects my broad assessment as the trial judge of the significance of this issue and the costs likely to be attributable to it. Applying this approach, I consider that Mr Seddon should be entitled to recover only 50% of his costs of defending the misuse claim (from 16 July 2013 when the action was begun).
    4. As in the case of Mr Bridgeman, however, I am approaching the question of costs in two stages and have not yet taken into account the defendants’ Part 36 offer to settle the misuse claim. It is clear that, in considering whether it is unjust to make an order of the kind referred to in CPR 36.17(3), the court’s discretion is much more circumscribed than the court’s broad discretion to depart from the general rule under CPR 44.2: see Lilleyman v Lilleyman (No 2) [2012] 1 WLR 2801, para 16. I accept that, although the particular circumstances to which the court’s attention is directed by CPR 36.17(5) relate to the making of the offer rather than the general conduct of the proceedings, the court is still able to take a broader view in an appropriate case: ibid; and see also Smith v Trafford Housing Trust [2012] EWHC 3320 (Ch), para 13(c). Nonetheless, as Briggs J observed in the latter case at para 13(d):
“[t]he burden on a claimant who has failed to beat the defendant’s Part 36 offer to show injustice is a formidable obstacle to the obtaining of a different costs order. If that were not so, then the salutary purpose of Part 36 in promoting compromise and the avoidance of unnecessary expenditure of costs and court time, would be undermined.”
  1. In the present case the defendants’ offer to pay Marathon a sum of £1.5m – plus its costs of the misuse claim, had the offer been accepted – was in my view a game-changer which cast Marathon’s subsequent pursuit of the claim in a very different light. The context in which the offer was made was that Marathon had no evidence to suggest that Mr Seddon and Mr Bridgeman had derived any financial gain from misusing its confidential files let alone caused Marathon to suffer any loss. Indeed, it was clear from the facts mentioned at paragraphs 105-107 of the main judgment that any financial gain which the defendants could possibly have made from their conduct was on any view modest and of a different order of magnitude from the amount of the Part 36 offer. In these circumstances Marathon’s decision not to accept the offer of £1.5m and instead to pursue a claim for what I described in the main judgment as “jackpot” damages makes it fair, in my opinion, to treat Marathon as litigating thereafter entirely at its own risk and potential cost. In particular, I do not consider it unjust to order Marathon to pay the costs incurred by all parties from 25 February 2016 in resolving the factual dispute about whether Mr Seddon had assisted Mr Bridgeman in copying 33 files which were never afterwards accessed or used. The offer made by the defendants should have rendered that dispute entirely academic. The policy underlying Part 36 requires that the cost consequences should be visited on parties in Marathon’s position who, instead of taking a realistic attitude, open their mouths too wide.
  2. Accordingly, in relation to Mr Seddon the order which I think it just to make is that Marathon should pay 50% of Mr Seddon’s costs of defending the misuse claim from the date when the action was begun until 24 February 2016 and the whole of his costs of doing so thereafter.