Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
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there is no such in-built limitation, <strong>and</strong> as a result a risk of ‘excessive punishment’,<br />
that we have found it necessary to impose the ‘first past the post takes all’<br />
restriction. 292<br />
For the reason just given, there should be no analogous risk of<br />
‘excessive restitution’ - that is, of a liability to restitution which exceeds the value of<br />
the benefits derived from the wrong.<br />
1.81 To the extent that multiple plaintiff claims to restitution do raise other issues (such<br />
as how a restitutionary damages award should be divided amongst multiple<br />
claimants), we believe that these are issues which should be capable of practical<br />
solution by the courts, or by the relevant procedural rule-making bodies, for all<br />
instances of restitution for wrongs, if <strong>and</strong> when they arise. We therefore<br />
recommend that:<br />
(13) our proposed legislation should not deal specifically with the<br />
problems raised by claims to restitution for wrongs by two or more<br />
plaintiffs from one defendant (‘multiple plaintiff cases’).<br />
5. A NOTE ON TERMINOLOGY<br />
1.82 One of the most needlessly confusing aspects of the law of restitution is the host of<br />
differently labelled remedies that are concerned to effect restitution. Even if we<br />
confine ourselves to restitution for wrongs (that is, unjust enrichment by<br />
wrongdoing) we have seen that an action for money had <strong>and</strong> received, an account<br />
of profits, <strong>and</strong> ‘restitutionary’ damages (where the damages are assessed according<br />
to the gains made by the defendant rather than the loss of the plaintiff), are all<br />
concerned to effect restitution. 293<br />
Moreover, all three of those remedies are<br />
personal, <strong>and</strong> not proprietary, remedies. We think that much would be gained in<br />
terms of simplifying the law, <strong>and</strong> nothing would be lost, if one replaced those three<br />
separately labelled remedies by a single remedy. Although this must be a matter<br />
for the judges, perhaps with guidance from a Practice Direction, <strong>and</strong> could not<br />
sensibly be imposed by legislation, we recommend that:<br />
(14) in the context of restitution for wrongs, it would be appropriate for<br />
judges - <strong>and</strong> so practitioners - to ab<strong>and</strong>on the labels ‘action for<br />
money had <strong>and</strong> received’ <strong>and</strong> ‘account of profits’ in favour of the<br />
single term ‘restitutionary damages’ (or at a higher level of<br />
generality, ‘restitutionary award’ or ‘restitution’). 294<br />
1.83 Two substantive advantages would flow from this simplification of terminology.<br />
First, the new label would be seen as fusing common law <strong>and</strong> equitable remedies<br />
<strong>and</strong> would therefore remove the historically-based <strong>and</strong> wholly arid discussion as to<br />
whether an account of profits (as an equitable remedy) can be awarded for a<br />
common law cause of action or whether damages (as a common law remedy) can<br />
be awarded for an equitable cause of action. The newly-labelled remedy would be<br />
292 See, in particular, paras 5.161-5.167, <strong>and</strong> more generally, paras 5.159-5.185, below.<br />
293 See paras 3.3, 3.5-3.32 above.<br />
294 It will be apparent that we do not agree with Millett LJ’s comment in Co-operative Insurance<br />
Society Ltd v Argyll Stores (Holdings) Ltd [1996] Ch 286, 306D that the term ‘restitutionary<br />
damages’ is a misnomer.<br />
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