Aggravated, Exemplary and Restitutionary ... - Law Commission

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