Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
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(a) <strong>Restitutionary</strong> damages should be available where a defendant has<br />
committed a tort, an equitable wrong or a statutory civil wrong, <strong>and</strong> his<br />
conduct showed a ‘deliberate <strong>and</strong> outrageous disregard of the plaintiff’s<br />
rights’<br />
1.50 In Part V we recommend that punitive damages should not be available unless the<br />
defendant has committed a tort, 265<br />
an equitable wrong, 266<br />
or a civil wrong that<br />
arises under a statute, 267<br />
<strong>and</strong> his conduct showed a ‘deliberate <strong>and</strong> outrageous<br />
disregard of the plaintiff’s rights’. 268<br />
We also recommend that punitive damages<br />
should never be available for breach of contract. 269<br />
1.51 In our view it would be unacceptable for legislation to lay down situations in which<br />
punitive damages can be awarded, if it did not also recognise that the less extreme<br />
remedy of restitution for a wrong (stripping away some or all of the gains acquired<br />
as a result of the wrong) should also be available in those situations. 270<br />
We<br />
therefore recommend that:<br />
(7) legislation should provide that restitutionary damages may be<br />
awarded where:<br />
(a) the defendant has committed:<br />
(i) a tort or an equitable wrong, or<br />
(ii) a civil wrong (including a tort or an equitable wrong)<br />
which arises under an Act, <strong>and</strong> an award of<br />
restitutionary damages would be consistent with the<br />
policy of that Act, <strong>and</strong><br />
(b) his conduct showed a deliberate <strong>and</strong> outrageous disregard of<br />
the plaintiff’s rights. (Draft Bill, clause 12(1)-12(3)).<br />
265 See recommendation (19)(a) <strong>and</strong> paras 5.49-5.56 below.<br />
266 Defined as breach of fiduciary duty, breach of confidence <strong>and</strong> procuring or assisting breach<br />
of statutory duty. See recommendation (19)(a) <strong>and</strong> para 5.56 below.<br />
267 Defined as any wrong which arises under an Act, for which a person may recover<br />
compensation or damages, provided that the availability of punitive damages would be<br />
consistent with the policy of the Act under which the wrong arises. See recommendation<br />
(19)(b) <strong>and</strong> paras 5.57-5.65 below.<br />
268 See recommendation (18) <strong>and</strong> paras 5.46-5.48 below.<br />
269 See recommendation (19) <strong>and</strong> paras 5.71-5.73 below.<br />
270 There is one theoretically possible difference. Where restitutionary damages are being<br />
considered for a civil wrong which arises under a statute (which we define in clause 12(2) of<br />
the draft Bill), the court may only award them if an award of restitutionary damages would<br />
be consistent with the policy of the statute in question: recommendation (7)(a)(ii) above.<br />
Where punitive damages are being considered for a civil wrong which arises under a<br />
statute, the court may only award them if an award of punitive damages would be consistent<br />
with the policy of the statute in question: recommendation (19)(b) below. It is theoretically<br />
possible (but almost inconceivable in practice) that a statute could be held to be consistent<br />
with an award of punitive damages, but not restitutionary damages (in the same<br />
circumstances).<br />
43