Though not strictly an intellectual property case, the Court of Appeal's decision in
It would appear that the general principle on the measure of damages for non-delivery of goods is the same as for wrongful non-acceptance, namely the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of contract. Where there is an available market for the goods in question the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price. As Lord Justice Rix put it:
"whether the matter is looked at in this way, by analogy with the case of the seller who sues his buyer for non-acceptance, or whether the matter is looked at more directly, asking what an owner of goods has lost by reason of having his goods lost or converted by a bailee, in breach of contract, there being as in this case no problem on the ground of remoteness or lack of knowledge of the profit in question, the answer must be that prima facie the owner is entitled to the value of his goods; and that if the defendant wishes to say that the loss is less because the profit could have been earned in any event by a substitute or replacement sale, at the cost only of the expenditure of a lesser sum for the purpose of manufacturing or buying in further goods, then the defendant bears the burden of proving that case. It is not for the claimant to prove a negative, that he has not recouped the profit by a substitute sale, but for the defendant to prove a positive, that the profit has been recouped and thus the loss of profit not suffered after all."