The judicial discretion in the quantification of lucrum cessans : an analysis

Abstract

The legislator in no way gave any indication on how the quantification of lucrum cessans should be carried out except in article 1045(2) of the Civil Code. However, this is rather a general clause which explicitly leaves the assessment of the sum to be awarded up to the court. This wide discretion afforded to the judiciary was the subject of various criticisms and recently, attempts were made by the legislature to limit and regulate it by amendments to the law. The main arguments seemed to be the lack of uniformity and consistency generated by this broad judicial discretion. This research contains an analysis of various Maltese judgements relating to lucrum cessans. It seeks to examine the approach of the courts towards their wide discretion with the aim to explore the judicial interpretation, the reasons and justifications given by the court as regards the necessity or otherwise of their discretion. The rationale of safeguarding a wide discretion is based to the principles of justice, equity and restitutio in integrum. This research shows that if the basis in Maltese tort law is to remain the adherence to the principle of restitutio in integrum, an extensive margin of judicial discretion is a requisite. It is that element which compensate for the imperfections and lacunae of the law. Although it has its benefits, uniformity is limited by the pursuance of justice in every individual case and consistency can be reached up to a certain limit, as suggested for example by fixed basic guidelines emerging from the rich jurisprudence and already frequently applied by the courts.