Aggravated, Exemplary and Restitutionary ... - Law Commission

there is no consensus among commentators as to which torts should trigger
restitution; incremental judicial development would therefore seem especially
appropriate.
1.42 We agree. Accordingly, we recommend that:
(4) no attempt should be made to state comprehensively in legislation
the situations in which torts should trigger restitution; subject to
recommendation (7), the development of the law of restitution for
torts should be left to common law development.
(b) Restitution of enrichments gained by an equitable wrong
1.43 We have seen that the focus of controversy is somewhat different in respect of
restitution for equitable wrongs than for torts - that is, the controversy is not about
whether restitution is available in respect of enrichments gained by an equitable
wrong (which is well-accepted), but about the appropriate remedy for effecting
restitution (personal or proprietary?). But we again believe, in line with the views
of consultees, 258
that this area is best left to the courts to develop, and that, in
general, statutory intervention would be inappropriate.
1.44 Accordingly, we recommend that:
(5) no attempt should be made to state comprehensively in legislation
the situations in which equitable wrongs should trigger restitution;
subject to recommendation (7), the development of the law of
restitution for equitable wrongs should be left to ‘common law’
development.
(c) Restitution of enrichments gained by a breach of contract
1.45 Several suggestions have been made to the effect that restitutionary damages ought
to be more widely available for breach of contract. 259
For example, Birks has
argued that restitutionary damages are appropriate where the breach of contract is
cynical; 260
whilst Maddaugh and McCamus have argued that restitution may be
appropriate where compensatory damages are inadequate. 261
1.46 In the Consultation Paper our provisional view was that, in general, restitutionary
damages should not be awarded for breach of contract, but that they should be,
and arguably already are, available where a contract is specifically enforceable 262
and where the contract is made between fiduciaries. We isolated four arguments
258 See para 3.41 above.
259 For a general survey, see A Burrows, The Law of Restitution (1993) pp 401-403.
260 “Restitutionary Damages for Breach of Contract” [1987] LMCLQ 421.
261 The Law of Restitution (1990) pp 432-438.
262 See also J Beatson, The Use and Abuse of Unjust Enrichment (1991) pp 15-17; S M
Waddams, “Restitution as Part of Contract Law”, in A Burrows (ed), Essays on the Law of
Restitution (1991) pp 208-212.
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