Aggravated, Exemplary and Restitutionary ... - Law Commission

area. The problem of ‘election of remedies’ goes beyond the remedies with which
we are here concerned and the adoption of the ‘principled’ approach would make
little practical difference. We therefore recommend that:
(11) our proposed legislation should not deal with the question whether
(and if so, when) both compensation and restitution may be
obtained for a wrong.
(3) Multiple defendants
1.73 So far as we are aware, and in contrast to exemplary damages, the ‘multiple
defendants’ problem has not been addressed in relation to restitutionary awards for
wrongs. The ‘problem’ arises in relation to such claims wherever two or more
defendants have made benefits from committing a wrong against the same
plaintiff. 287
Is such a defendant only liable to restitution in respect of the benefits
which he or she has personally and wrongfully made? Or can a defendant be
made liable to restitution in respect of benefits which another party has wrongfully
made?
1.74 We would expect that a wrongdoer would personally have had to receive a benefit
before an action for restitution could lie against him or her. This may already be
the law, 288
and certainly we think it unlikely that the problems which have arisen in
relation to exemplary damages would arise in relation to restitution. 289
For the
basis of a claim to restitution is that the defendant from whom restitution is sought
has been ‘unjustly enriched’ - and in the area of restitution for wrongs, this ought
to mean that the defendant has received a benefit from his wrong against the
plaintiff.
1.75 Whether or not this view is correct, we do not think that the regime which we
propose to apply to punitive damages (several liability, with exceptions for
vicarious liability and partnerships) 290
can simply be applied to claims to
restitutionary damages. In particular, the concept of vicarious liability may not
apply to restitutionary damages. Can one say that an employee who personally
receives a benefit by committing a tort in the course of employment renders his
employer liable for the benefit he received? Moreover, if two tortfeasors, acting as
part of a joint enterprise, make a gain of £1,000 from a single tort, it is not obvious
what ‘several liability’ would entail. Should they each be liable to pay £500 or
£1,000?
287 The defendants may have committed, in law, separate wrongs by their independent acts, or,
in law, a joint wrong.
288 But we are aware that the law on agents receiving ‘unjust enrichments’ may make the
principal liable, even if he has not personally gained thereby. See, for example, A Burrows,
The Law of Restitution (1993) pp 478-486.
289 These have, in particular, arisen from efforts to constrain the otherwise problematic effects
of the law’s recognition of joint or joint and several liability to exemplary damages. See
paras 4.77-4.80 and paras 5.186-5.191, below.
290 See, in particular, paras 5.192-5.208 and 5.209-5.230, and recommendations (34)-(40)
below.
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