Aggravated, Exemplary and Restitutionary ... - Law Commission

the purposes of the claim to restitutionary damages; the judge would decide the
question for the purposes of the claim to punitive damages. This is obviously
unsatisfactory.
1.56 In order to avoid such unsatisfactory complexity and the potential for conflict, we
recommend that:
(9) the judge, and not the jury, should decide whether the defendant’s
conduct showed a ‘deliberate and outrageous disregard of the
plaintiff’s rights’ for the purposes of a claim to restitutionary
damages, where both restitutionary damages and punitive damages
are in issue in the same proceedings. (Draft Bill, clause 12(4))
This recommendation would entail that that common question is decided by one
decision-maker only: the judge.
1.57 It is important to emphasise that we do not otherwise seek to alter the respective
responsibilities of judge and jury when restitutionary damages are in issue. In
particular, the jury will retain its present role in deciding whether a wrong (for
example, defamation) has been committed, and in deciding the quantum of
restitution. And, indeed, the division of responsibility between judge/jury will be
entirely unaffected where restitution for wrongs is claimed on a basis other than
that the defendant ‘deliberately and outrageously disregarded the plaintiff’s rights’.
4. FOUR FURTHER ISSUES RELATING TO CLAIMS TO
RESTITUTION FOR WRONGS
1.58 In this Part, we have essentially been looking at the question, when should there be
restitution for a civil wrong? In this section, we turn to four further questions that
arise if restitution is available for a particular wrong:
• What should be the quantum of restitution?
• Can one recover both restitution and compensation for a wrong?
• How should one deal with multiple defendants?
• How should one deal with multiple plaintiffs?
In accordance with our basic approach of leaving development of the law on
restitution for wrongs to the courts, we do not recommend legislation on any of
these four questions.
(1) The quantum of restitution
1.59 The starting-point in determining the quantum of restitution is to identify all the
gains that the defendant has made by the wrong. This is a factual causation
inquiry, which essentially requires the application of a ‘but for’ test: the gain is
attributable to the wrong if the defendant would not have made that gain but for
the wrong. So, for example, in My Kinda Town Ltd v Soll, 275
where the defendants
275 [1982] FSR 147, reversed on liability [1983] RPC 407.
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