Aggravated, Exemplary and Restitutionary ... - Law Commission

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