Account of Profits

The UK Supreme Court in Morris-Garner v One Step (Support) Ltd [2018] UKSC 20 confirmed that ordinary common law damages for breach of contract cannot be awarded merely to strip the defendant of profits made from the breach, "other than in exceptional circumstances, following Attorney General v Blake" — the 2001 House of Lords decision permitting an account of profits against a former intelligence officer who breached a lifelong confidentiality undertaking by publishing his memoirs. The Court traced the remedy's more settled roots to equity's treatment of breach of fiduciary duty, where a fiduciary's "duty of unqualified loyalty" carries a "consequent duty to account for all profits made from his position" — meaning an account of profits is a standard, not exceptional, remedy in that context.

The remedy is likewise a standard feature of intellectual property litigation: statutes governing registered designs, patents, trade marks and copyright expressly provide for relief by way of an account of profits in an infringement action, alongside or as an alternative to damages, reflecting the equitable principle that a wrongdoer should not be permitted to retain profits made from infringing another's rights. Outside these established categories — for ordinary common law torts, for example — courts have continued to treat an account of profits as unavailable, underlining that its scope beyond contract, fiduciary duty and intellectual property remains narrow.