Nominal and contemptuous damages and declarations

Abstract

Many torts are actionable only on proof of damage. But torts actionable per se, as well as breach of contract, are actionable without proof of damage. One consequence is that even though the court is satisfied that the claimant has not suffered any damage, it is still entitled to damages for the defendant’s breach of contract or tort actionable per se. Such damages are termed nominal and they comprise a trivial sum of money, usually about £2–£10. Nominal damages are therefore in no sense compensatory and must be distinguished from a small sum of compensatory damages. Their function is merely to declare that the defendant has committed a wrong against the claimant and hence that the claimant’s rights have been infringed. Given that the remedy of a declaration is specifically designed to serve this purpose, nominal damages are superfluous and could happily be abolished. This is particularly so since what was previously an important practical consequence of an award of nominal damages has been removed by Devlin J’s decision in Anglo-Cyprian Trade Agencies v Paphos Wine Industries Ltd that a claimant awarded nominal damages should not necessarily be regarded as a successful claimant for the purposes of costs.