Aggravated, Exemplary and Restitutionary ... - Law Commission

nuisance 195
has also been recognised. The restitutionary remedies in these cases
have included both awards of money had and received and damages (where the
assessment of the damages was more concerned with stripping away some or all of
the defendant’s gains than compensating the plaintiff’s loss). In some cases the
plaintiff has been awarded all the profits made by the defendant (for example,
from the sale of the plaintiff’s goods). In other cases the plaintiff has been held
entitled to a proportion of the profits derived from the use of the property or a
reasonable charge for the use of the property. These awards have been made
irrespective of whether the plaintiff would itself have made those profits or would
have charged for the lawful use of its property.
1.11 It is also noteworthy that by sections 27 and 28 of the Housing Act 1988 a remedy
of a restitutionary character has been created for “unlawful eviction”: the damages
awarded under these sections are measured according to the increase in the value
of the landlord’s property resulting from the eviction. 196
1.12 One of the clearest judicial acceptances of restitution as an appropriate remedy for
a property tort was made by Hoffmann LJ in the trespass to land case of Ministry
of Defence v Ashman. 197
He said:
A person entitled to possession of land can make a claim against a
person who has been in occupation without his consent on two
alternative bases. The first is for the loss which he has suffered in
consequence of the defendant’s trespass. This is the normal measure
of damages in the law of tort. The second is the value of the benefit
which the occupier has received. This is a claim for restitution. The
two bases of claim are mutually exclusive and the plaintiff must elect
before judgment which of them he wishes to pursue. These principles
are not only fair but ... well established by authority. It is true that in
earlier cases it has not been expressly stated that a claim for mesne
profit for trespass can be a claim for restitution. Nowadays I do not
see why we should not call a spade a spade. 198
1.13 A significant feature of restitution for proprietary torts is that it is not a precondition
that the defendant was acting dishonestly or in bad faith or cynically.
While it may be said that the proprietary torts normally require intentional
conduct (for example, the tort of conversion normally requires that the defendant
intended to deal with the goods in question), it is no defence to the tort, including
a restitutionary remedy for the tort, that the defendant honestly and reasonably
believed that the property was his rather than the plaintiff’s. So if the defendant
sells the plaintiff’s goods, the plaintiff is entitled to restitution of the sale profits
even though the defendant honestly believed them to be his own. Similarly, if the
defendant uses another’s goods, it would seem that the owner is entitled to
195 Carr-Saunders v Dick McNeill Associates Ltd [1986] 1 WLR 922 (although, as there was no
evidence of profit, no award was made).
196 See, eg, Jones v Miah (1992) 24 HLR 578, 587.
197 (1993) 66 P & CR 195. Ashman was followed and applied by the Court of Appeal in
Ministry of Defence v Thompson [1993] 2 EGLR 107. See generally, E Cooke, “Trespass,
Mesne Profits and Restitution” (1994) 110 LQR 420.
198 (1993) 66 P & CR 195, 200-201.
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