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I read Lord Nicholls' comments differently from Charles. The full quotation is:

"Some aspects of this rule have attracted criticism. Vindication of a plaintiff's proprietary interests requires that, in general, all those who convert his goods should be accountable for benefits they receive. They must make restitution to the extent they are unjustly enriched. The goods are his, and he is entitled to reclaim them and any benefits others have derived from them. Liability in this regard should be strict subject to defences available to restitutionary claims such as change of position: see Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548. Additionally, those who act dishonestly should be liable to make good any losses caused by their wrongful conduct. Whether those who act innocently should also be liable to make good the plaintiff's losses is a different matter. A radical re-appraisal of the tort of conversion along these lines was not pursued on these appeals. So I shall say nothing more about it."

As I see it, Lord Nicholls was concerned with whether the tort of conversion should be reappraised in line with either the claim for "vindication of a proprietary interest" in "unjust enrichment" or a principle that those that act dishonestly should make good losses. Therefore the radical reappraisal would have the tort become subject to change of position or become dependent upon proof of dishonesty. But he was merely floating both suggestions.

His comments on what he refers to as the "user principle" and "damages based on the defendant's gain" are, however, as I see them, references to restitutionary damages. I don't think it is inconsistent with his argument in Tang Man Sit that a plaintiff can get both restitutionary damages and compensatory damages. Indeed there is a long line of authority that does not require election between the two. Tang Man Sit concerned an election between a claim for an account of profits (which I would label "disgorgement damages") and 2 claims to "damages" (which, properly understood, were one head of "restitutionary damages" and one head of "compensatory damages").

Jamie