Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
You also want an ePaper? Increase the reach of your titles
YUMPU automatically turns print PDFs into web optimized ePapers that Google loves.
common law to hold, if necessary, that ‘flagrant’ infringements of copyright merit<br />
an increased measure of compensatory damages.<br />
1.285 Nor will the abolition of additional damages lead to any lacunae in restitutionary<br />
remedies for these intellectual property wrongs. It is true that a court is<br />
specifically directed to take into account “any benefit shown to have accrued to the<br />
defendant by reason of the infringement” in deciding whether or not to award<br />
additional damages. But this is certainly not a decisive indication that additional<br />
damages have a restitutionary rather than a punitive aim. 843<br />
And we are unaware<br />
of any judicial authority, or of any support in the legislative history of section<br />
97(2), for the view that additional damages are restitutionary in aim. 844<br />
Even if<br />
additional damages could include restitutionary damages, abolition would not<br />
leave lacunae because an account of profits will remain available to victims of such<br />
wrongs. 845<br />
Moreover, if the defendant’s conduct has shown a ‘deliberate <strong>and</strong><br />
outrageous disregard of the plaintiff’s rights’, the victim may be entitled to claim<br />
‘restitutionary damages’ under our Act. 846<br />
1.286 We also think it important that several intellectual property lawyers have<br />
emphasised to us how anomalous it is that the special remedy of additional<br />
damages is only available for a limited number of intellectual property torts. Our<br />
proposals have the merit of making punitive damages available for all such wrongs,<br />
(although if an intellectual property tort ‘arises under an Act’, this is only so if<br />
such an award would be consistent with the policy of the Act in question). 847<br />
(11) Commencement of the Damages Act 1997<br />
1.287 Insurers have expressed to us the concern that increases in the quantum of<br />
punitive damages should not apply in respect of insurance cover which they have<br />
already given, <strong>and</strong> therefore the hope that our Bill will not apply retrospectively. In<br />
order to accommodate this concern, we recommend that:<br />
(48) our draft Bill should provide that nothing in it applies to causes of<br />
action which accrue before its commencement. (Draft Bill, clause<br />
16(1))<br />
1.288 This means that where a cause of action accrued before commencement, the old<br />
law of exemplary damages, as defined by (in particular) the ‘categories test’ <strong>and</strong><br />
the ‘cause of action test’ will continue to apply to a claim for damages in respect of<br />
843 See, in particular, the discussion of category 2 exemplary damages at paras 4.16-4.19<br />
above.<br />
844 See the discussion at paras 4.21-4.22, which indicates that judicial disagreement about the<br />
characterisation of additional damages has been a disagreement about whether they are best<br />
viewed as authorising awards of exemplary damages, or a higher measure of compensation<br />
than could be obtained on ordinary principles.<br />
845 See para 3.22 above.<br />
846 See clause 12 of the draft Bill. ‘<strong>Restitutionary</strong> damages’ will be available for wrongs which<br />
‘arise under an Act’ for which a person may recover compensation or damages where (i) the<br />
defendant’s conduct showed a deliberate <strong>and</strong> outrageous disregard of the plaintiff’s rights;<br />
<strong>and</strong> (ii) an award of restitutionary damages would be consistent with the policy of that Act.<br />
847 See recommendations (19)(a) <strong>and</strong> (19)(b), at para 5.44 above.<br />
181