Aggravated, Exemplary and Restitutionary ... - Law Commission

1.106 The controversy surrounding additional damages has hitherto arisen only in the
context of claims for infringement of copyright. 345
In the two recent decisions of
Cala Homes (South) Ltd v McAlpine Homes East Ltd (No 2) 346
and Redrow Homes
Ltd v Bett Brothers plc, 347
Laddie J and the Court of Session (Inner House), reached
opposite conclusions. 348
Reviewing, inter alia, the legislative history of section
97(2), Laddie J inclined to the view that additional damages were a form of
financial relief which could be likened to exemplary damages. 349
The Court of
Session held that they were aggravated damages. The predecessor to section
97(2), section 17(3) of the Copyright Act 1956, had not generally been thought in
the case law to authorise exemplary damages. 350
Instead it was said to authorise
awards of aggravated damages, 351
or compensation which would otherwise be
irrecoverable under the ordinary rules about remoteness and proof of damage. 352
In contrast, the Whitford Committee, reporting in 1977, considered that section
17(3) gave the courts power to award exemplary damages, 353
and indeed, that the
provision should be strengthened. 354
The court may in an action for infringement of [copyright or design right or
performer’s property rights] having regard to all the circumstances, and in
particular to -
(a) the flagrancy of the infringement, and
(b) any benefit accruing to the defendant by reason of the infringement,
award such additional damages as the justice of the case may require.
For discussion of additional damages, see, in particular: Laddie, Prescott and Vitoria, The
Modern Law of Copyright (2nd ed, 1995) vol 1, paras 24.30-24.31; Copinger & Skone James
on Copyright (13th ed, 1991) paras 11.66-11.67; W Cornish, Intellectual Property (3rd ed,
1996) para 11.61.
345 Copyright, Designs and Patents Act 1988, s 97(2).
346 [1996] FSR 36.
347 [1997] SLT 1125.
348 The question immediately before both courts was whether additional damages could only
be claimed in addition to ‘damages’ (as was held in Redrow Homes), or whether they could
be claimed in addition to an account of profits also (as was held in Cala Homes). The
proper characterisation of additional damages was a very important part in the reasoning of
each court to their respective conclusions.
349 [1996] FSR 36, 43. Cf also Brugger v Medicaid [1996] FSR 362 and ZYX Music Gmbh v
King [1997] 2 All ER 129, 148g-149g, in which Hirst LJ found it inappropriate to express a
view on whether exemplary damages could be awarded under s 97(2).
350 The express statements are found in Broome v Cassell [1972] AC 1027, 1134A, per Lord
Kilbrandon, and Beloff v Pressdram Ltd [1973] 1 All ER 241, 264j-266b, per Ungoed-
Thomas J. The one clear authority to the contrary, which was reinterpreted as an
aggravated damages case by Lord Devlin in Rookes v Barnard [1964] AC 1129, 1225, is
Williams v Settle [1960] 1 WLR 1072.
351 See, in particular, Beloff v Pressdram [1973] 1 All ER 241, 264j-266b, per Ungoed-Thomas
J, and Broome v Cassell [1972] AC 1027, 1134A, per Lord Kilbrandon.
352 Mondaress Ltd v Bourne & Hollingsworth Ltd [1981] FSR 118, 122, per Buckley LJ.
353 Copyright and Designs Law (1977) Cmnd 6732, paras 697-705. The Report of the
Copyright Committee (1952) Cmd 8662 (the Gregory Committee Report), on which the
1956 Act was apparently based, advocated the introduction of a power to award “something
equivalent to exemplary damages in cases where the existing remedies give inadequate
relief” (para 294). Although the distinction between ‘aggravated damages’ and ‘exemplary
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