Aggravated, Exemplary and Restitutionary ... - Law Commission

equired to trigger an account of profits for patent infringement is negligence, 220
whereas for infringement of copyright, 221
primary infringement of design right, 222
and infringement of performer’s property rights, 223
an account of profits may be
ordered on a strict liability basis (that is, it is not a defence that the defendant did
not know, and had no reason to believe, that copyright or design right existed in
the work or design to which the action relates). As we have seen, a strict liability
approach to restitutionary remedies for a tort is applied in respect of other
proprietary torts. 224
However, it clashes with what appears to be the approach in
respect of the common law intellectual property torts.
(c) Non-proprietary torts
1.23 When one moves to examine the non-proprietary torts, it is much more difficult to
find examples of cases illustrating the award of restitution for a tort. In particular,
‘waiver of tort’ cases that are sometimes cited as illustrations 225
turn out on closer
inspection to be better (or, at least, equally well) interpreted as cases within unjust
enrichment by subtraction (that is, ‘waiver of tort’ is being used in the third sense
set out above). 226
1.24 It is also significant that in Halifax Building Society v Thomas 227
the Court of Appeal
has recently denied a plaintiff a restitutionary claim to the gains made by the tort
of deceit. After earlier pointing out that counsel for the plaintiff had accepted that
“there is no English authority to support the proposition that a wrongdoing
defendant will be required to account for a profit which is not based on the use of
the property of the wronged plaintiff”, Peter Gibson LJ said:
There is no decided authority that comes anywhere near to covering
the present circumstances. I do not overlook the fact that the policy of
law is to view with disfavour a wrongdoer benefiting from his wrong,
the more so when the wrong amounts to fraud, but it cannot be
suggested that there is a universally applicable principle that in every
case there will be restitution of benefit from a wrong. 228
220 Patents Act 1977, s 62(1). The same approach applies to damages.
221 Copyright, Designs and Patents Act 1988, s 97(1). A different approach applies to
damages.
222 Copyright, Designs and Patents Act 1988, s 233(1). A different approach applies to
damages.
223 Copyright, Designs and Patents Act 1988, s 191J(1). A different approach applies to
damages.
224 See para 3.13 above.
225 On deceit see, for example, Hill v Perrott (1810) 3 Taunt 274, 128 ER 109; Billing v Ries
(1841) Car & M 26, 174 ER 392; Kettlewell v Refuge Assurance Co [1908] 1 KB 545,
affirmed [1909] AC 243. On intimidation see, for example, Astley v Reynolds (1731) 2 Str
915, 93 ER 939; Universe Tankships Inc of Monrovia v ITWF [1983] 1 AC 366. On inducing
breach of contract see, for example, Lightly v Clouston (1808) 1 Taunt 112, 127 ER 774;
Foster v Stewart (1814) 3 M & S 191, 105 ER 582.
226 See para 3.7 above.
227 [1996] Ch 217.
228 [1996] Ch 217, 227G-H.
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