Aggravated, Exemplary and Restitutionary ... - Law Commission

available for common law and equitable wrongs alike. Secondly, it has traditionally
been thought that an account of profits requires a very precise calculation of the
relevant profits, with an actual account having to be drawn up, showing gains and
losses, 295
whereas it has been accepted that often damages can be calculated in a
rough and ready manner. In fact in recent years some judges have accepted that
an account of profits need not be any more precisely calculated than damages. 296
This is to be welcomed but a replacement of the label ‘account of profits’ would
be even better in severing the link with the needless and historically-based
requirement of precision in calculation.
1.84 Some may consider that there are insuperable problems in abandoning longaccepted
remedial labels. For example, it may be argued that an action for money
had and received and an account of profits are ‘debt’ actions or liquidated claims,
whereas ‘restitutionary damages’ implies an unliquidated claim. But any
distinctions that do turn on whether a claim is for a debt or liquidated claim, or an
unliquidated claim, are either irrational in the context of restitution for wrongs, or
could equally well be applied to ‘restitutionary damages’ depending on whether
the damages are for a certain sum or require assessment by the courts. More
problematically it may be thought that the term ‘restitutionary damages’ means
that the courts would lose the general discretion that they have to refuse to award
the equitable remedy of an ‘account of profits’ - for example, on the grounds of the
plaintiff’s ‘unclean hands’ or hardship to the defendant. While we accept that
there are difficulties here, we do not regard them as insuperable. Equitable
remedies share with common law remedies that they are awarded, or refused, in
accordance with well-established rules and principles. Moreover, there are
common law doctrines - such as those of illegality or public policy - which mirror
in nature, if not in scope, the so-called ‘discretionary’ defences in equity. It may
therefore be that a move to the single label ‘restitutionary damages’ would not
involve any significant loss of judicial discretion to refuse the remedy.
295 See, eg, Price’s Patent Candle Co Ltd v Bauwen’s Patent Candle Co Ltd (1858) 4 K & J 727.
296 See, eg, My Kinda Town Ltd v Soll [1982] FSR 147, 159; Potton Ltd v Yorkclose Ltd [1990]
FSR 11.
52