Aggravated, Exemplary and Restitutionary ... - Law Commission

(b) his conduct showed a deliberate and outrageous disregard of the
plaintiff’s rights. (Draft Bill, clause 12(1)-12(3))
(8) recommendation (7) should not prejudice any other power to award
restitutionary damages for a wrong, nor remedies which also effect
restitution for a wrong but which are historically distinct from
restitutionary damages (eg an account of profits for an intellectual property
tort). (Draft Bill, clause 12(5))
(9) the judge, and not the jury, should decide whether the defendant’s conduct
showed a ‘deliberate and outrageous disregard of the plaintiff’s rights’ for
the purposes of a claim to restitutionary damages, where both
restitutionary damages and punitive damages are in issue in the same
proceedings. (Draft Bill, clause 12(4))
(10) our proposed legislation should not deal with how the quantum of
restitution is determined.
(11) our proposed legislation should not deal with the question whether (and if
so, when) both compensation and restitution may be obtained for a wrong.
(12) our proposed legislation should not deal specifically with the problems
raised by claims to restitution for wrongs committed by two or more
defendants against one plaintiff (‘multiple defendant cases’)
(13) our proposed legislation should not deal specifically with the problems
raised by claims to restitution for wrongs by two or more plaintiffs from
one defendant (‘multiple plaintiff cases’)
(14) in the context of restitution for wrongs, it would be appropriate for judges -
and so practitioners - to abandon the labels ‘action for money had and
received’ and ‘account of profits’ in favour of the single term ‘restitutionary
damages’ (or, at a higher level of generality, ‘restitutionary award’ or
‘restitution’).
Exemplary Damages
1.3 We recommend that:
(15) exemplary damages should be retained.
(16) our draft Bill should reflect our preference for the term ‘punitive damages’
rather than ‘exemplary damages’. (Draft Bill, clause 1(2))
(17) the judge, and not a jury, should determine whether punitive damages
should be awarded, and if so, what their amount should be. (Draft Bill,
clause 2)
(18) punitive damages may only be awarded where in committing a wrong, or in
conduct subsequent to the wrong, the defendant deliberately and
outrageously disregarded the plaintiff’s rights; (Draft Bill, clause 3(6); for
‘conduct’ see clause 15(3)); and the narrower ‘categories’ test of Rookes v
Barnard should be rejected. (Draft Bill, clause 3(9))
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