Aggravated, Exemplary and Restitutionary ... - Law Commission

is thus an obligation to make restitution ... The substance of the matter
is that on certain facts he is claiming redress either in the form of
compensation, ie damages as for a tort, or in the form of restitution of
money to which he is entitled, but which the defendant has wrongfully
received. The same set of facts entitles the plaintiff to claim either
form of redress. At some stage of the proceedings the plaintiff must
elect which remedy he will have. 189
1.7 There are two other meanings of the phrase ‘waiver of tort’. One refers to a
principle of agency law whereby the victim of a tort can choose to give up his right
to sue for a tort by treating the tortfeasor as having been authorised to act as the
plaintiff’s agent and then relying on standard remedies against an agent to recover
the profits made. In this situation, the tort is truly extinguished. 190
The other
meaning refers to where the plaintiff chooses to ignore the tort and instead rests
his or her claim to restitution on unjust enrichment by subtraction; for example, a
plaintiff, who has been induced to transfer money to the defendant by the
defendant’s fraudulent misrepresentation, may ignore the tort of deceit and seek
restitution of the payment from the defendant within unjust enrichment by
subtraction on the basis that it was paid by mistake. 191
1.8 In this paper we are essentially concerned with ‘waiver of tort’ in its first, and
usual, sense. That is, we are concerned with restitution for a tort. One must be
careful to ensure, however, that one does not cite, as supporting restitution for a
tort, cases that rest on ‘waiver of tort’ in one of its other two senses.
1.9 In examining restitution for torts, it is helpful to divide between:
• proprietary torts, excluding the protection of intellectual property
• intellectual property torts
• other torts
(a) Proprietary torts, excluding the protection of intellectual property
1.10 Restitutionary remedies have long been granted for proprietary torts, such as
conversion, 192
trespass to goods, 193
and trespass to land. 194
Their appropriateness in
189 [1941] AC 1, 18-19.
190 For a rare example of this, see Verschures Creameries Ltd v Hull and Netherlands SS Co Ltd
[1921] 2 KB 608.
191 See para 3.23 below.
192 Lamine v Dorrell (1705) 2 Ld Raym 1216, 92 ER 303; Chesworth v Farrar [1967] 1 QB 407.
193 Oughton v Seppings (1830) 1 B & Ad 241, 109 ER 776; Strand Electric & Engineering Co Ltd
v Brisford Entertainments Ltd [1952] 2 QB 246, 254-255, per Denning LJ (cf Somervell and
Romer LJJ, who analysed the award as compensatory).
194 Powell v Rees (1837) 7 Ad & E 426, 112 ER 530; Penarth Dock Engineering Co Ltd v Pounds
[1963] 1 Lloyd’s Rep 359; Bracewell v Appleby [1975] Ch 408; Ministry of Defence v Ashman
(1993) 66 P & CR 195.
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