Aggravated, Exemplary and Restitutionary ... - Law Commission

1.76 For these reasons, as well as the considerations that this area of the law is largely
unexplored, that the issue was not raised with consultees, and that a solution in
this area would have to be evolved for all claims to restitution for wrongs (and not
just those under our Act), we consider that this issue is one best left for future
courts to resolve, for all instances of restitution for wrongs. We recommend that:
(12) our proposed legislation should not deal specifically with the
problems raised by claims to restitution for wrongs committed by
two or more defendants against one plaintiff (‘multiple defendant
cases’).
(4) Multiple plaintiffs
1.77 The same conduct or course of conduct of one person may constitute a separate
wrong to two or more others. If the wrongdoer has obtained a benefit by
committing those wrongs, and more than one person can establish an entitlement
to restitution in respect of them, it is not easy to determine what their individual
entitlements to restitution should be. Say, for example, a defendant has made
gains by allowing its factory to discharge noxious fumes constituting the tort of
private nuisance to a large number of plaintiffs. Or say the defendant publishes an
article which makes defamatory remarks about a group of people. This problem
does not yet appear to have arisen in relation to restitutionary awards for wrongs.
1.78 It shall be seen in Part V that we do consider that special legislative provision is
required to deal with multiple claims to exemplary damages. 291
But for several
reasons we consider that the problem of multiple claims to restitution for wrongs is
one that is best left for the courts to resolve.
1.79 First, for reasons of coherence, any legislative provision for multiple plaintiff cases
ought to apply to all claims to restitution for wrongs - that is, to claims under the
statute which we propose, as well as to claims arising outside of the statute. Since
we consider that such a legislative change would go too far, the only coherent
alternative is to leave multiple plaintiff problems to be resolved for all claims to
restitution for wrongs by the courts. The ‘minimalist’ approach to statutory
intrusion in the developing common law on restitution for wrongs which we
propose - legislative reform only so far as is necessarily required by reform of the
law of exemplary damages - does not require us to go any further.
1.80 Secondly, we believe that multiple plaintiff claims to restitutionary damages do not
produce the same difficulties as those which justify ‘special provision’ for multiple
plaintiff claims to punitive damages. In particular, the law of restitution for wrongs
should, as it already stands, have an in-built limitation on the number of actions in
which restitution may be awarded in respect of the gains made by a defendant
from a particular course of conduct. The defendant’s liability to restitution for a
wrong or wrongs must be limited to the benefits which the defendant obtained as a
result of the wrong or wrongs; accordingly, if the defendant is made liable to
restitution to the full extent of those benefits in one action, there should be no
question of any later claim to restitution in respect of some or all of those benefits
being permissible. Contrast the law of exemplary damages. It is precisely because
291 See paras 5.159-5.185 below.
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