Aggravated, Exemplary and Restitutionary ... - Law Commission

damages assessed according to a reasonable hiring charge, even though the
defendant honestly believed them to be his own.
1.14 The Court of Appeal’s decision in the trespass to land case of Phillips v Homfray 199
has traditionally been regarded as hampering the recognition of restitution for
torts. The deceased had trespassed by using roads and passages under the
plaintiff’s land to transport coal. In an earlier action the plaintiff had been granted
‘damages’ to be assessed for the use of the land against the (then living) tortfeasor.
The question at issue was whether this action survived against the deceased’s
executors despite the actio personalis rule then barring the survival of tort claims.
The majority (Baggallay LJ dissenting) held that it did not survive on the ground
that for a restitutionary remedy (at least, for one that is to survive against a
deceased’s executors) the gain made by the tortfeasor must comprise the plaintiff’s
property or the proceeds of that property. Therefore no award survived in respect
of the expense which the deceased had saved by his wrongful use of the plaintiff’s
land.
1.15 On one view, the decision was inextricably tied up with the actio personalis rule and
has no validity now that that rule has gone. 200
On another view, the decision was
concerned with unjust enrichment by subtraction because restitution for the tort
of trespass to land was barred by the actio personalis rule. 201
On yet another view,
the decision is simply wrong, in drawing an arbitrary distinction between types of
benefit and in confusing personal and proprietary rights, and should be
overruled. 202
1.16 Whichever view is taken the same essential conclusion is reached, namely that the
majority’s approach should not today be regarded as restricting the availability of
restitution for trespass to land or any other tort. It is therefore unsurprising that in
recent times restitutionary remedies have been awarded for torts, including in
trespass for land cases 203
which, if the decision were of general validity, would
contradict Phillips v Homfray. 204
1.17 One modern decision of the Court of Appeal is inconsistent with the law’s
recognition of restitution for proprietary torts. In Stoke-on-Trent City Council v W
& J Wass Ltd 205
the defendant had committed the tort of nuisance by operating a
Thursday market from 12 April 1984 within a distance infringing the plaintiff
council’s proprietary market right (that is, within 6 2/3 miles of the plaintiff’s same
199 (1883) 24 ChD 439.
200 S Hedley, “Unjust Enrichment as the Basis of Restitution - An Overworked Concept”
(1985) 5 Legal Studies 56, 64; W Gummow in PD Finn (ed), Essays on Restitution (1990)
pp 60-67.
201 P Birks, An Introduction of the Law of Restitution (revised ed, 1989) p 323.
202 Lord Goff of Chieveley and G Jones, The Law of Restitution (4th ed, 1993) p 719; A
Burrows, The Law of Restitution (1993) p 391.
203 See, eg, 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.
204 But Phillips v Homfray (1883) 24 ChD 439 was applied in AG v De Keyser’s Royal Hotel
[1920] AC 508. See also Morris v Tarrant [1971] 2 QB 143.
205 [1988] 1 WLR 1406.
32