(i) Torts and Breaches of Fiduciary Duty

Finally, the victim of the crime may found his or her restitutionary claim on the commission of a wrong. Where the crime also constitutes the commission of a restitution-yielding tort, it is clear that the claimant may sue the criminal in tort and seek a gain-based remedy. So, for example, where the defendant commits a crime involving fraud[1] as a result of which property is taken from the victim, this may also constitute the tort of deceit and so the claimant can obtain a restitutionary remedy from the criminal in respect of that tort.[2] Alternatively, the crime committed by the criminal might involve breach of fiduciary duty, so the victim will be able to bring a restitutionary claim against the defendant based upon that breach.[3]

  • [1] Contrary to the Fraud Act 2006.
  • [2] See Halifax Building Society v Thomas [1996] Ch 217 where the defendant was convicted of conspiring toobtain a mortgage advance by deception. On the facts, the restitutionary claim to recover the proceeds of thecrime failed because the claimant had elected to affirm the mortgage despite the defendant’s fraud. But if themortgage had not been affirmed, and it could have been shown that the defendant had obtained a benefit as aresult of the crime, the claim should have succeeded.
  • [3] See, for example, Reading v Attorney-General [1951] AC 507 and Attorney-General for Hong Kong v Reid[1994] 1 AC 324. Receipt of bribes by a fiduciary in the course of business will typically constitute a crimeunder the Bribery Act 2010, s 2.
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