Aggravated, Exemplary and Restitutionary ... - Law Commission

Full discussion of the above conditions can be found in the relevant passages in
Part V of this Report. 271
1.52 It is important to emphasise that we do not thereby intend to cast doubt on other
situations in which restitution may be awarded for wrongs. For example, it
appears that restitutionary damages can be awarded for proprietary torts, such as
trespass to land or conversion, without ‘deliberate and outrageous’ wrongdoing:
the basis of the restitutionary liability is ‘strict’. 272
We also do not intend to cast
doubt on the availability of restitutionary remedies which are historically distinct
from restitutionary damages, such as an account of profits for intellectual property
torts, 273
or for breach of fiduciary duty. 274
And nor do we wish to limit future
common law development of restitution for wrongs, including breach of contract.
Thus, for example, courts will be left free to decide, in the future, that
restitutionary damages may be obtained for a ‘deliberate and outrageous’ breach of
contract, or on some other (narrower or wider) basis.
1.53 We therefore recommend that:
(8) recommendation (7) should not prejudice any other power to award
restitutionary damages for a wrong, nor remedies which also effect
restitution for a wrong but which are historically distinct from
restitutionary damages (eg an account of profits for an intellectual
property tort). (Draft Bill, clause 12(5))
(b) Where restitutionary damages and punitive damages are claimed
in the same proceedings, the judge alone should decide whether the
defendant’s conduct was in ‘deliberate and outrageous disregard of the
plaintiff’s rights’
1.54 In Part V we recommend that, in a jury trial, the judge, not the jury, should decide
whether punitive damages are available. The judge, not the jury, would therefore
decide, inter alia, whether the defendant’s conduct showed a ‘deliberate and
outrageous disregard of the plaintiff’s rights’.
1.55 To allow juries to continue to decide, for the purposes of deciding claims to
restitutionary damages, whether the defendant’s conduct showed a ‘deliberate and
outrageous disregard ...’, would produce procedural complexity where a plaintiff
claims both (i) restitutionary damages, and (ii) punitive damages. The reason is
that one precondition of both claims is the same (did the defendant’s conduct
show a deliberate and outrageous disregard of the plaintiff’s rights?), but the
question of whether it is satisfied would fall to be decided by two different
decision-makers within the same action. The jury would decide the question for
271 See paras 5.49-5.56 below (punitive damages available for any tort or certain equitable
wrongs); paras 5.57-5.65 below (punitive damages available for statutory civil wrongs, but
only where an award of punitive damages would be ‘consistent with the policy of the Act’
under which the wrong arises); paras 5.46-5.48 below (‘deliberate and outrageous disregard
of the plaintiff’s rights’).
272 See para 3.13 above.
273 See paras 3.19-3.22 above.
274 See paras 3.28-3.29 above.
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