Reconsidering Disgorgement for Wrongs

Abstract

for their thought-provoking comments on an earlier draft of this paper.1 'Disgorgement', rather than 'restitutionary damages', is used so as to better differentiate between this remedy and the remedy of restitution for subtractive unjust enrichment ('restitution'): see L. Smith, 'The Province of the Law of Restitution' (1992) 71 Can Bar Rev 672, 683-94. 2 Law Commission Report (No. 247): Aggravated, Exemplary and Restitutionary Damages (1997), recommendations 7-9 and Draft Bill, clause 12, suggesting that the common law ought to be allowed to develop unimpeded, but that, in addition, restitutionary damages (their preferred term) ought to be available where the defendant's wrong (other than a breach of contract) was committed with 'deliberate and outrageous disregard of the plaintiff's rights'.3 A-G v Blake [1998] 1 All ER 833, 844-46 (CA), suggesting (obiter and without argument or elaboration) that disgorgement for breach of contract might be appropriate where the breach consisted in doing exactly what the contract expressly prohibited or in delivering shortfall performance.4 See, eg, G.Jones, Goff & Jones: The Law of Restitution (London: Sweet & Maxwell, 4th edn, 1993) ('Goff & Jones'), pp 714-34; P. Birks, An Introduction to the Law of Restitution (Oxford: Clarendon Press, rev'd edn, 1989) ('Birks'), p 326-7 (provided the defendant's breach is cynical); Sir William Goodhart QC, 'Restitutionary Damages for Breach of Contract' [1995] RLR 3; P. Jaffey, 'Restitutionary Damages and Disgorgement' [1995] RLR 30, 40 and 'Disgorgement and Confiscation' [1996] RLR 92, 93, 96; H. McGregor, 'Restitutionary Damages' in P. Birks (ed), Wrongs and Remedies in the Twenty-First Century (Oxford: Clarendon Press, 1996) ch 9, p 209 (but only if the defendant's breach is deliberate, cynical and with a view to profit). 5 See notes 2-4, above.Goff & Jones, p 721, come close to this, suggesting that the remedy ought to be available whenever the profit could not have been generated 'but for' the breach.

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