Many disputes involve monetary compensation, and if this is significant it is likely to be difficult and subjective to quantify. This also applies if quantification involves or relates to valuable brands, intangible assets or intellectual property. Difficulty and subjectivity do not, in themselves, preclude quantification of loss and it often assists dispute resolution when well-informed and supported quantifications of losses are tabled. This is because it focuses the parties and their advisers on the monetary value of points taken and evidence put forward. The overriding requirement is to assist by bringing well supported, rounded quantifications based on commercial reality, and what is used in practice. Not only do the methodologies applied need to be reasonable, but the overall figures also need to be reasonable. But it has to be suitable to the circumstances in which it is to be used. With this in mind, the following principles generally apply broadly to the types of losses quantified by Intangible Business:
- Quantification of losses needs to be based on factual evidence, documents and witness statements, as well as expert reports.
- Losses should be quantified at the amount which should be paid to the claimant to put it in the same position that it would have been but for the wrongful act.
- The claimant has to prove its losses on the balance of probabilities.
- Losses should be: (i) foreseeable; (ii) caused by the wrongful act; and (ii) not excluded from recovery by public or social policy.
- Loss quantification will require an assessment of what would have happened but for the wrongful act, compared with what actually happened. It will also require comparison between: (i) future events that would have been expected to occur; with (ii) future events that are expected to occur. The level of accuracy used will reflect the uncertainties of quantification, and broad brush estimates can be made if they are required.
- Where a claim for past loss depends on hypothetical acts of third parties, the claimant needs only to show that it had a substantial chance, rather than a speculative one, of enjoying the benefits conferred by third parties. Once past this hurdle, the likelihood that the benefit or opportunity would have occurred is relevant only to the quantification of damages.
In disputes involving a significant impact on a business, quantification of losses is likely to relate to the value of the business itself. Given the significance of brand, intangible or IP value to business value then any impact on such value is likely to be significant as well.
Intangible Business's expert witnesses recognise that matters subject to dispute can extensively affect drivers of business and intangible asset value. The approach to analysing, presenting and explaining such matters in the context of loss or damage quantification is based on good understanding and research of the commercial markets, and flow from market driven research, information and investigation. Benchmarking is often important, and the reference points and extensive support found in Intangible Business's analyses of losses give more insight and assurance on how such losses can be quantified, and how reasonable Intangible Business's quantifications are.
Experts from Intangible Business are frequently instructed as expert witnesses or advisers for loss or damage quantification for dispute resolution in the High Court, international arbitrations and other courts or tribunals. This often draws on Intangible Business's expertise in valuing brands, valuing businesses, IP valuation, valuing intangible assets, copyright valuation, patent valuation, valuing software, technology valuation and valuing other ownership interests.