The Law Commission, in reviewing the law of restitution for wrongs,[1] considered that it is preferable to leave the development of the law to the common law. It was surely right to reach this conclusion, since the law concerning the award of gain-based remedies for wrongs is at an early stage of development, so that it would be inappropriate to curtail development by the judges. But the Law Commission did conclude that, since it recommended that the award of exemplary damages should be placed on a statutory footing, it should follow that restitutionary damages should be available wherever exemplary damages could be awarded. Consequently, the Law Commission recommended that legislation should provide that restitutionary damages may be awarded where the defendant has committed a tort, an equitable wrong or a statutory wrong and the defendant’s conduct showed a deliberate and outrageous disregard of the claimant’s rights.175 The Law Commission also recommended that the award of such damages should be a matter for the judge and that this statutory power should not infringe any other power to award restitutionary damages.

If the development of the law of restitution for wrongs is left to the common law, how should that law be developed? The answer is that it should continue to develop gradually with continuous regard to the principles which underlie the award of gain-based remedies for wrongdoing. Although it might be considered that such remedies should be available regardless of the type of wrong which is committed, this is a dangerous approach, simply because each type of wrongdoing raises very different issues of policy as to the remedy which is appropriate. For example, the award of restitutionary remedies for breach of contract and the commission of a criminal offence raise very different questions which need to be examined in respect of the particular wrong itself. Nevertheless, the analysis of the Law Commission and the identification of the fundamental principles in this chapter should mean that judges can be more confident in awarding gain-based remedies for wrongs in the future.

  • [1] Aggravated, Exemplary and Restitutionary Damages (Law Com No 247, 1997). 175 Ibid, 43.
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