Mitigation

Mitigation is a limiting principle on the recovery of damages: a claimant cannot recover compensation for losses that reasonable steps on their part could have avoided. The Explanatory Notes to the Consumer Rights Act 2015 set out this limb of the standard damages test alongside causation and foreseeability, stating that “a person can only recover damages for loss which was caused by the breach… and which was sufficiently foreseeable; and the consumer cannot recover for loss which they could reasonably have acted to limit or mitigate.”

The duty is not confined to consumer claims — it is treated as part of the ordinary law of damages that applies across contract claims generally. The Explanatory Notes to the Contracts (Rights of Third Parties) Act 1999 confirm that where a third party enforces a contractual term under that Act, “the normal rules of law applicable to those remedies, including the rules relating to causation, remoteness and the duty to mitigate one’s loss, apply to the third party’s claim” — i.e. a third party stands in no better position on mitigation than an original contracting party would.