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Audio recording 27.2 transcript
Mitigation is clearly really important doctrine. And I just want to say something briefly about it because it's something that we've come across before, already in the book. And in particular, when thinking about White & Carter v McGregor on the action for the agreed sum. Where it's one of those areas which you might put under the umbrella heading of good faith in English law. So, after a breach of contract, I'm under what's called a duty, but I'll come back to that in a second. I'm under what's called a duty to mitigate, a duty to take reasonable steps to reduce my loss. So, let's imagine that in breach of my contract of employment, UCL were to wrongfully sack me. And so, I have a claim for breach of contracts and can sue them for damages for my loss. And let's say that because I know this, I just decide to sit around at home all the time, go to the pub far too much, and genuinely feel miserable for myself for an extended period of time. And, but soon after I'm sacked by UCL, another university comes along and offers me a job on the similar, or even better terms, you know, they might be offering to pay me more money. And let's say that I reject that offer from this new university. If I would reject the offer and don't go back to work and just continue on sitting around feeling sorry for myself, then I'll only be able to recover damages from UCL as if I had acted reasonably, and as if I had taken this offer from the other university. Now it’s sometimes said that I've failed in my duty to mitigate. But it's not a duty in the ordinary sense because I'm under no legal obligation to accept this new offer. I'm under no obligation to take any steps at all. It's just that if I don't take those reasonable steps, if I don't take those reasonable steps, I will only be able to recover damages from UCL as if I had taken those steps. So, it's not really a duty, but it is important. And it makes sense that I shouldn't be allowed to just, you know, wallow in misery and impose huge liabilities on UCL, I should have to reduce, take reasonable steps to reduce my loss. And that might even involve taking a new offer from UCL. So, let's say that UCL realize that they've mucked up and then offer me better terms, then maybe I should accept that offer. Now it's difficult in a context of employment because I might not have trust in them, which is important in an employment context. But in large scale commercial contracts, then sometimes you might have to accept an offer made by the original contract breaker. And one other thing I want to flag up for mitigation now is that it does tie in, I think, with the section on date of assessment. So, when you look at what date a damage is assessed, I think that's tied in with at what date could the claimant reasonably be expected to mitigate their loss. Which will become more clear when you get to that section of the book.