(1)The recoverable amount specified in an order must not exceed whichever is the lesser of—
(a)the total value of the benefits identified in the order under section 155(4)(b), and
(b)the available amount.
(2)The recoverable amount may be a nominal amount.
(3)The benefits identified in the order—
(a)may include any benefit derived by the respondent up to the time the court makes its determination;
(b)must not include any benefit identified in a previous exploitation proceeds order made against the respondent;
(c)must not include any benefit in respect of which an enforcement authority has no cause of action under this Part by virtue of section 27C of the Limitation Act 1980 (c. 58), Article 72C of the Limitation (Northern Ireland) Order 1989 (S.I. 1989/1339 (N.I. 11)) or section 19D of the Prescription and Limitation (Scotland) Act 1973 (c. 52) (limitation period for exploitation proceeds orders).
(4)The value of a benefit in kind derived by a person is the amount which, at the time that benefit was received, it would have cost that person to obtain the benefit in the open market less the total value of any consideration for that benefit provided by that person or, where that benefit was secured for another person, by that other person.
(5)If a benefit in kind cannot be obtained in the open market, the court is to determine a value to attribute to that benefit that is just and reasonable, taking into account any similar benefits available in the open market.
(6)Where a benefit derives only partly from the matters mentioned in section 155(3)(a) or (b), the value of the benefit derived from those matters is such proportion of the value of the benefit as the court considers it is just and reasonable to regard as attributable to those matters.
(7)In this section “the court” means the court making the exploitation proceeds order.
Commencement Information
I1S. 163 in force at 6.4.2010 by S.I. 2010/816, art. 2, Sch. para. 11