by Thorsten Lauterbach, Teaching Excellence Fellow, Robert Gordon University, Aberdeen
It will have been difficult not to see the tale of woe behind the Willy’s Chocolate Experience, a story that dominated headlines[1] in Scotland and beyond,[2] as it went viral on social media: children and their parents had been looking forward to around an hour of exhilarating entertainment, at up to £35 per ticket, only to receive the exact opposite. It is a box of wondrous legal issues aplenty: advertising, employment law, intellectual property law, consumer law, contract law – and there may well be some more. This blog entry looks at this story from a consumer redress angle, particularly focusing on solatium for breach of contract in common law, and how the thinking on this concept was driven by one – or two – prominent Scots.
What happened?
Advertising via the Willy’s Chocolate Experience website had promised “a place where chocolate dreams become reality. Book your adventure now and embark on a journey filled with wondrous creations and enchanting surprises at every turn!”,[3] “an enchanted garden, with giant sweets, vibrant blooms, mysterious looking sculptures, and magical surprises that add an extra layer of wonder to your Chocolatey Experience!”,[4] Imagination Lab, Twilight Tunnel – an “event [which] guarantees an immersive and delightful entertainment experience suitable for aged 3+ years old”.[5] However, the reality turned out to be different.
Things started to unravel rather quickly when parents and their children found themselves in a largely empty warehouse with a few minimal props and actors who did their best to work with gibberish scripts generated apparently by artificial intelligence. Children were lucky to receive a jellybean or two, with no chocolates in sight. There was not much enchantment, nor any activities for the children to do. In effect, the experience was all over in five to ten minutes. Irate parents called the police, and the event was abruptly cancelled among shouts for refunds. Could there be the possibility here of more than just refunds of the cost of tickets, based on the law on damages for breach of contract?
Patrimonial and non-patrimonial loss – and classic case law
In cases of breach of contract, the primary focus may regularly lie on economic, patrimonial loss, whereby the remedy of damages seeks to compensate the “innocent” party in monetary terms. Often, this is assessed by comparing the performance rendered with the performance that was contracted for. For example, this type of loss may be made good by a discount or a refund of the contract price.
In respect of non-patrimonial loss, the law is less straightforward. Solatium (injury to feelings, mental distress) is a reasonably well-developed heading of loss as part of a damages claim in delict, particularly negligence, but less so in contract.[6] The starting point is the traditional rule set down by the House of Lords in Addis v Gramophone Co Ltd[7] where it was held that a wrongfully dismissed employee could not claim for loss suffered by injury to his feelings as part of his claim for damages, no matter how cruel or demeaning the experience had been. The thinking behind this view was that the subject matter of the contract was first and foremost of a commercial nature, thereby stemming a potential tide of claims based on mental distress.[8] The law on contract formation at that time revolved around leaving the parties in charge, with little or no involvement by the legislator. The Sale of Goods Act 1893 was in place, but that statute had been developed with commercial contracts in mind in the context of the Industrial Revolution. “Consumerism” and “consumer protection” were still many decades away from becoming part of the terminology and thinking in contract law and policy, and from impacting – in a qualifying manner – on the bedrock provided by the key general principles of freedom and sanctity of contract.
However, the goalposts on solatium were moved significantly by Sheriff-Substitute Peterson in Diesen v Samson,[9] a decision which influenced the law on the matter far beyond Scotland,[10] representing a considerable claim to fame for a decision reached on the lowest rung of the Scottish judicial ladder. The dispute concerned a bride from Glasgow who had contracted with and was let down by a photographer who was expected to provide his services to record her wedding day.[11] The event involved both Scottish and Norwegian families, all contributing to a memorable occasion by wearing their respective traditional attire. Whilst noting the general view in Addis, the court cited Mayne and McGregor on Damages[12] arguing that there was room for manoeuvre: solatium for loss caused by breach of contract might be available in appropriate situations, softening the rigidity of the traditional view. Inverurie-born Harvey McGregor had significantly updated the textbook in 1961, and it became the leading text on the matter. Indeed, Tam Dalyell noted that “not since Moses has there been such an authoritative tablet”.[13] McGregor sought to carefully guard against “a dogmatic rule in the case of mental suffering”:[14] the yardstick was what had reasonably been in the contemplation between the parties at the time the contract was formed. Therefore, if a contract went beyond mere commercial matters and had the provision of pleasure and enjoyment at its heart, “the door [should] not [be] closed to awarding damages for mental suffering.”[15] This found traction with the court:
Wedding photographs generally are of no interest to anyone except the bride and bridegroom and their relatives and friends, and then only because they serve to stimulate recollection of a happy occasion and so give pleasure. What both the parties obviously had in their contemplation was that the pursuer would be enabled to enjoy such pleasure in the years ahead (emphasis added). This has been permanently denied her by the defender’s breach of contract and, in my opinion, it is as fitting a case for the award of damages as the examples cited [in Mayne and McGregor].[16]
Acknowledging that the quantification of this type of loss was difficult, the court awarded £30 in damages, while trying to “preserve a sense of caution”.[17]
Essentially, a core element of joy and pleasure is present in most consumer-trader transactions, particularly in agreements for specific services or events, like holidays or “experiences”. This was confirmed spectacularly in Jarvis v Swan Tours,[18] likened to “The Donoghue v Stevenson of Tourism Law”.[19] Many will be familiar with Mr Jarvis’ two-week disappointing Swiss alpine holiday when he had been looking forward to . He had been promised an amazing time based on the travel agent’s “lavishly illustrated brochure with its ecstatic text”.[20] This, however, did not become a reality, with many facilities unavailable and with the loneliness he was familiar with as a local authority solicitor in Barking extending to his holiday. While Sheriff-Substitute Peterson’s jurisprudence in Diesen did not (yet) make an appearance as helpful authority in this case, it is noteworthy that the work by another Scot of rapidly increasing scholarly prominence did: McGregor on Damages (by then in its 13th edition and bearing the name of Harvey McGregor as sole author) was cited in support of this decision by Stephenson LJ, pointing out that “there may be contracts in which the parties contemplate inconvenience on breach which may be described as mental: frustration, annoyance, disappointment.”[21] Comparing Jarvis’s expectations based on the promises made to him and what had in fact been provided to him, Lord Denning MR had no difficulty in awarding damages for the loss of enjoyment and entertainment amounting to just under twice the price of the holiday.[22] The tide on the availability of solatium as part of a damages claim for breach of contract had firmly turned.
The courts in Diesen and, particularly, in Jarvis understood that contracts for tourism and entertainment are experiential as a matter of principle. The key purpose of these agreements is that their purchasers have a great time, which brings us back to Willy’s Chocolate Experience. The parents and their children were promised much by a lavishly illustrated website with ecstatic text; they arrived with high expectations – but the reality came close to neither. Cue Lord Denning in Jarvis:
In a proper case, damages for mental distress can be recovered in contract, just as damages for shock can be recovered in tort. One such case is a contract for a holiday, or any other contract to provide entertainment and enjoyment (emphasis added). If the contracting party breaks their contract, damages can be given for the disappointment, the distress, the upset and frustration caused by the breach.[23]
The already infamous story about a disappointing family experience in a Glasgow warehouse seems to represent a classic situation, “a proper case”, where solatium could be part of the tricky discussion around compensation for mental distress and disappointment caused by a breach of contract.
But hold the front page: is all of this too simplistic? After all, was most of the disappointment not felt by the children who were not necessarily buyers of tickets and, therefore, not parties to the contract with the event organisers? This adds an interesting angle to this debate where it might become a question of policy as to where the line should be drawn. In our context, the children’s joy and pleasure turned quickly into dismay and disappointment. Invariably, this was rapidly projected to the ticket-purchasing parents and grandparents who confronted staff and went so far as calling the police: “A bad time was had by all.” To some extent, the booking of a family holiday with specific children’s activities which are not provided may serve as a useful analogy: even though the disappointment may be most keenly felt by the youngsters, is that feeling not shared to a very similar extent by the parents who now, stressed to the hilt among the floods of tears, need to hunt for substitute pursuits for their little ones?
This brings the discussion back to Dr McGregor’s view that:
If (…) the contract is not primarily a commercial one, in the sense that it affects not the claimant’s business interests but the claimant’s personal, social and family interests (emphasis added), the door should not be closed to awarding damages for mental suffering if the court thinks that in the particular circumstances the parties to the contract had such damage in their contemplation.”[24]
In Watts v Morrow, Bingham LJ opined that “[w]here the very object of a contract is to provide pleasure (…) damages will be awarded if the fruit of the contract is not provided or if the contrary result is procured instead. If the law did not cater for this exceptional category of case it would be defective”.[25] Is it going too far to interpret “family interests” to include disappointment by family members who were not direct parties to the contract (some of whom would probably have been too young to enter into it themselves)? Would this open a floodgate which contract law policy would do well to maintain closed and subject matter contract law should not cater for? Future contract law assessments have once again started to write themselves …
A version of this blog post was first published in The Journal of the Law Society of Scotland: A world of ‘not so’ pure imagination | Law Society of Scotland (lawscot.org.uk)
[1] Calum Watson, Morven Mckinnon, and Megan Bonar, ‘Willy Wonka experience: How did the viral sensation go so wrong?’ (BBC News, 2 March 2024) <https://www.bbc.co.uk/news/uk-scotland-glasgow-west-68431728>
[2] Angela Yang, ‘A Willy Wonka-inspired experience “scam” was so bad that people called the cops’ (NBC News, 28 February 2024) <https://www.nbcnews.com/tech/willy-wonka-inspired-chocolate-experience-outrage-rcna140726>
[3] ibid (n 1).
[4] ibid (n 1).
[5] ibid (n 1).
[6] Scottish Law Commission, Discussion Paper on Remedies for Breach of Contract (Scot Law Com No 163, 2017).
[7] Addis v Gramophone Co Ltd [1909] AC 488.
[8] ibid.
[9] Diesen v Samson 1971 SLT (Sh Ct) 49.
[10] As highlighted in, William W. McBryde, ‘Remedies for breach of contract’ (1996) 1 Edin LR 43, 72.
[11] Scottish Law Commission (n 6).
[12] Harvey McGregor, Mayne and McGregor on Damages (12th edn, Sweet & Maxwell 1961).
[13] Tam Dalyell, ‘Harvey McGregor: Barrister and supporter of the arts who was acclaimed for his magisterial book “McGregor on Damages”’ (The Independent, 1 July 2015) < https://www.independent.co.uk/news/people/news/harvey-mcgregor-barrister-and-supporter-of-the-arts-who-was-acclaimed-for-his-magisterial-book-mcgregor-on-damages-10356395.html>
[14] McGregor (n 12) 43.
[15] ibid.
[16] Diesen (n 9) para 50.
[17] ibid.
[18]Jarvis v Swan Tours [1972] EWCA Civ 8.
[19] Trudie-Ann Atherton and Trevor C Atherton, ‘The Legalities of Overbooking, Overcrowding, Delay and Disappointment: Lessons for the Sydney 2000 Olympics’ (1999) 22(3) UNSW LJ 858, fn 35.
[20] Jarvis (n 18) 239.
[21] ibid.
[22] ibid.
[23] ibid.
[24] McGregor on Damages (21st edn, Sweet & Maxwell 2020) para 5-024.
[25] Watts v Morrow [1991] 1 WLR 1421, 1445.
