3.

Before going into the questions relating to the various factors used to calculate the damage, I must still examine a number of aspects of a more general nature. (a) First, and as a matter of general principle, what are the conditions which must be fulfilled in order that justice may require the payment of damages, once responsibility has been established? The eminent representative of the High Authority told us in the oral proceedings that the damage must foe ‘proved, certain and quantifiable’. ‘Proved’ is an obvious requirement: the onus of proof lies with the injured party. However the defendant must not remain inactive. It is incumbent on him to produce to the court all the evidence which can be used to dispute the relevance of the evidence put forward by the party opposing him. Even when the defendant is an administrative body it must, at least within certain limits, produce the documents or the information which it alone possesses in its capacity as a public authority. Briefly, therefore, although the parties oppose each other, they are required, and indeed precisely because they are opponents, to collaborate with a view to enabling the court to decide, with all the facts at its disposal, whether the damage is sufficiently proved, a matter which is in the last resort one for the court alone: I am not here considering a situation in which clear evidence is available in advance. ‘Certain and quantifiable damage’—I willingly concede that the damage must be certain. On the other hand I have some reservations as regards ‘quantifiable’. Doubtless it must be admitted that the assessment of the damage cannot be arbitrary, but the difficulties in calculating it must not stop the court: this is the case with non-material damage, but even with material damage the fact that certain elements cannot be calculated with a complete guarantee of accuracy is not a sufficient reason for refusing any reparation. For it must not be forgotten that the starting point is a wrongful act or omission, and that it is precisely this which can make it difficult to calculate the amount of the damage exactly. It is surely not for the injured party to suffer from this state of affairs. This is particularly so when, as here, it is necessary to reconstitute fictitiously the situation which would have arisen if the wrongful act or omission had not been committed. When reconstituting a situation in this way, the court may call for the most detailed evidence which can reasonably be produced, having regard to the circumstances of the case. However it cannot ask for more than this, and where necessary it must accept realistic estimates, such as averages prepared on a comparative basis, as satisfactory proof. Experts are always preparing estimates of this sort. Finally, it is often said that one of the conditions which must be fulfilled in order that damage may be actionable is that the damage must be ‘direct’, which means that there must be an ‘immediate’ (and not an ‘indirect’) link of cause and effect as between the wrongful act or omission and the damage. In the written procedure, the High Authority denies in several passages the existence of such a link in this case. (b) Turning now to the specific matters in dispute it still remains to consider a series of objections of a general nature raised by the High Authority. These objections are to the effect that nothing proves that even in the absence of the transport parity grant the applicant undertakings would have obtained greater supplies of imported ferrous scrap and lesser supplies of shipyard scrap. Three reasons are given in support of this argument: 1. The Equalization Fund had the power to determine the amounts of ferrous scrap qualifying for equalization payments. In particular they had the power to favour shipyard scrap in this respect. It follows that the undertakings did not have a free choice between shipyard scrap and imported scrap, and that therefore it is definitely not right to say that they would certainly have obtained the latter in place of the former. 2. Shipyard scrap has always been considered of better quality than imported scrap. It is therefore to be supposed that the applicant undertakings would iv reality have obtained the same supplies of shipyard scrap as they in fact did even if they had not been given the transport parity grant. 3. The undertakings did not know what the final cost of each transaction was going to be. This prevented them from exercising a choice in placing their orders, influenced only by the promise of the transport parity grant, as they claim, nor even mainly by it. The said promise could not be the factor determining their choice. These arguments must be rejected. The first is refuted in cogent and apparently unanswerable terms by the reply, and I take the liberty of referring to it (pages 16 and 17), because the High Authority has refrained from returning to the question subsequently. As to the second, the applicants answer that the quality of shipyard scrap is comparable with the quality of imported scrap, or at least of scrap originating in America, and this point is no longer disputed. The third, which is developed mainly in the rejoinder (pages 37 to 41) is apparently the most forceful. In fact the uncertain factors pointed out by the High Authority are undeniable, particularly as regards the equalization price which was not known until after the making of the contract. Furthermore the uncertainty experienced by the undertakings with regard to the final cost of a transaction is confirmed by the fact that, having worked out the comparative calculations in the course of the proceedings, certain undertakings have been led to claim a loss greater than the amount of the transport parity reimbursement. This proves, says the High Authority (rejoinder, p. 41), that this repayment ‘did not make up for the loss which those undertakings suffered by reason of the fact that they chose shipyard scrap in preference to imported scrap’. Nevertheless it does seem that in a general way the making of the transport parity grant to the works which were further away from the ship-breakers' yards than from the ports of importation was a factor determining their choice. The example of Pompey mentioned at the last hearing in the oral procedure seems to show that the undertakings attached a decisive importance to it. It may well be that they sometimes made mistakes in their estimates: at the moment when a commercial bargain is struck, the true advantage of it cannot be calculated with the same precision as it can after a detailed investigation carried out several years later, when the financial and commercial documents are looked at together. In reality the damage results from the fact that the freedom of choice of the undertakings was impaired by the promises of the transport parity grant which had been improperly made to them. Therefore the damage exists if (even after the event) it is ‘established that the purchase of shipyard scrap without the benefit of the transport parity grant was more expensive for the applicants than an outright purchase of imported ferrous scrap’: this is precisely what you held in your judgment of 15 December 1961.