Aggravated, Exemplary and Restitutionary ... - Law Commission

to be irrelevant to, and even inconsistent with, a remedy which is directed to the
recovery of profits. 336
1.104 It is helpful to emphasise at this stage that category 2 has been criticised on the
ground that it is too narrow. The reason given is that those who commit torts
intentionally and maliciously should not escape liability for exemplary damages
merely because they were not motivated by the desire to profit from their wrong.
The case where a defendant commits a tort, not for gain, but simply out of malice,
was considered by Lord Reid in Broome v Cassell:
The reason for excluding such a case from [category 2] is simply that
firmly established authority required us 337
to accept this category
however little we might like it, but did not require us to go farther. If
logic is to be preferred to the desirability of cutting down the scope for
punitive damages to the greatest extent that will not conflict with
established authority then this category must be widened. But as I
have already said I would, logic or no logic, refuse to extend the right
to inflict exemplary damages to any class of case which is not already
clearly covered by authority. 338
(c) Category 3: where expressly authorised by statute
1.105 Parliament has rarely thought it necessary to authorise exemplary damages by a
statutory provision. The only clear example is the Reserve and Auxiliary Forces
(Protection of Civil Interests) Act 1951, section 13(2), which expressly authorises
the award of “exemplary damages”. 339
In Rookes v Barnard 340
Lord Devlin
specifically cited this provision as an example of express statutory authorisation.
The other example, arguably, is in the field of the protection of copyright and
related rights, where the remedy of “additional damages” is available for
infringement of copyright, 341
design right 342
and performer’s property rights. 343
The
correct analysis of additional damages has been, and remains, controversial. 344
336 These principles include, in particular, those relating to moderation and joint liability. See
paras 4.68 and 4.77-4.80 below.
337 Ie the House of Lords in Rookes v Barnard [1964] AC 1129.
338 [1972] AC 1027, 1088E-F.
339 Section 13(2) provides:
In any action for damages for conversion or other proceedings which lie by virtue
of any such omission, failure or contravention, the court may take account of the
conduct of the defendant with a view, if the court thinks fit, to awarding
exemplary damages in respect of the wrong sustained by the plaintiff.
340 [1964] AC 1129, 1225. Cf Lord Kilbrandon in Broome v Cassell [1972] AC 1027, 1133H-
1134A, who regarded this as an example of the older usage of the term exemplary damages,
which would now be considered to be aggravated damages.
341 Copyright, Designs and Patents Act 1988, s 97(2).
342 Copyright, Designs and Patents Act 1988, s 229(3).
343 Copyright, Designs and Patents Act 1988, s 191J, as inserted by the Copyright and Related
Rights Regulations 1996, SI 1996 No 2967.
344 The statutory formulation of the remedy is identical in each case (s 97(2); s 191J; s 229(3)):
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