Restitution Discussion Group Archives
| 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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FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE
telephone and answering machine : (01223) 334931
messages : (01223) 334900
fax : (01223) 334967
Christ's College Cambridge CB2 3BU
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