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Sender:
Steve Hedley
Date:
Tue, 16 Dec 1997 13:04:54
Re:
Law Commission Report

 

At 11:01 16/12/97 +0000, Lionel Smith quoted:

Restitutionary damages aim to strip from a wrongdoer gains made by committing a wrong. We think that restitutionary damages ought to be more widely available than at present, but that such development is, in general, best left to the courts. Our legislative proposals are therefore confined to ensuring that, wherever punitive damages could be awarded by a court, the court will also have available to it the less extreme remedy of restitutionary damages. Thus we propose that restitutionary damages should be available for a legal wrong (other than breach of contract) if the defendant has made gains by deliberately and outrageously disregarding the plaintiff's rights.

The new proposal certainly seems to leave a huge amount to judicial discretion!

The remedy may only be considered where the defendant's conduct is "deliberate" and "outrageous", both words which are (to put it mildly) susceptible of many different interpretations;

The measure is discretionary - the only constraint in the bill is that the measure must be designed to remove the defendant's benefit;

The action is only available at all if the judges think fit, as the bill says that damages "may" be awarded under this head.

Given how little litigation there has been in this area, we will be waiting a very long time indeed before we know what it means. This part of the legislation seems to be more about imposing a particular framework of ideas on the law than about achieving any practical objective.

 

Steve Hedley
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