Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
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espect of those wrongs. 836<br />
To the extent that additional damages are ‘punitive’<br />
damages, therefore, there will be no legitimate additional role for them, if our<br />
recommendations are implemented. For to allow ‘punitive’ additional damages to<br />
continue to exist would involve accepting, as we do not, that a punitive award can<br />
be made which is not subject to the limitations imposed by our Act.<br />
1.284 Even if additional damages are best viewed as compensatory in nature 837<br />
(which we<br />
doubt) we can nevertheless see no convincing reason for retaining them. In our<br />
Consultation Paper we observed that:<br />
In so far as s 96(2) of the Act provides a general remedy for copyright<br />
infringement of damages which are ‘at large’ as well as a remedy of<br />
account ... it is difficult to see the role of s 97(2) if exemplary damages<br />
are not permitted by it. 838<br />
There is, we believe, no reason why ‘aggravated damages’ (that is, damages for<br />
mental distress) should not be capable of being awarded, apart from sections<br />
97(2), 191J <strong>and</strong> 229(3), for infringement of copyright, performer’s property rights<br />
or design right. This seems to have been assumed in at least two cases. 839<br />
Nor is<br />
there any necessary bar to judicial development of exceptions to the usual rules of<br />
remoteness as they exist at common law. 840<br />
In Smith New Court Securities Ltd v<br />
Scrimgeour Vickers (Asset Management) Ltd 841<br />
Lord Steyn justified the ‘special’<br />
deceit rules in terms which prima facie also justify wider rules in relation to<br />
intentional wrongdoing generally. 842<br />
It is surely not beyond the capacity of the<br />
836 Apart from the fact that Parliament apparently did consider that a punitive remedy was<br />
necessary for these wrongs (<strong>and</strong> so expressly provided for the remedy of additional<br />
damages), there is also the fact that the Act provides (by ss 96(2), 191J <strong>and</strong> 229(2)) that in<br />
an action for any of these wrongs:<br />
... all such relief by way of damages, injunctions, accounts or otherwise is<br />
available to the plaintiff as is available in respect of the infringement of any other<br />
property right.<br />
If our proposals are implemented, punitive damages will be available (as indeed exemplary<br />
damages already are) for the infringement of other property rights, as property torts such as<br />
trespass to l<strong>and</strong> or to goods. In these circumstances, the provisions just referred to would<br />
seem to require punitive damages to be available for infringement of copyright, performer’s<br />
property rights <strong>and</strong> design right.<br />
837 See the discussion at paras 4.21-4.22 above.<br />
838 <strong>Aggravated</strong>, <strong>Exemplary</strong> <strong>and</strong> <strong>Restitutionary</strong> Damages (1993) Consultation Paper No 132,<br />
para 3.54.<br />
839 In Rookes v Barnard [1964] AC 1129, Lord Devlin certainly considered that it was possible<br />
to recharacterise Williams v Settle [1960] 1 WLR 1072 as a case awarding ‘aggravated<br />
damages’ at common law for infringement of copyright. And although Beloff v Pressdram<br />
[1973] 1 All ER 241 stated that s 17(3) left no place outside its ambit for the award of<br />
compensatory or aggravated damages, nor for exemplary damages, it did not decide that<br />
aggravated damages could not have been obtained for infringement of copyright before the<br />
1956 Act was passed. Once the exclusive statutory claim (to ‘additional damages’) is<br />
removed, the common law claim should be capable of rebirth.<br />
840 See, in particular Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158 <strong>and</strong> the tort of deceit.<br />
841 [1997] AC 254.<br />
842 [1997] AC 254, 279F-280C.<br />
180