Restitutionary damages: the unnecessary remedy?

Abstract

A monetary remedy that is measured according to the gain to the defendant, rather than to the loss to the plaintiff, is being increasingly sought. There has been relatively little attempt to explore the most appropriate doctrinal basis for such a remedy. This monetary gain-stripping remedy is often referred to as ‘restitutionary damages’. This article questions the need for this new form of common law damages. The article examines the ability of the law to respond to the desire to award victims of common law wrongs a gain-based remedy and investigates whether, as a matter of principle, the equitable remedy of an account of profits should be available, in appropriate cases, to victims of common law wrongs. The choice between restitutionary damages and an account of profits is not one between meaningless labels. Rather, the doctrinal basis for the remedy will inform and provide the appropriate framework for the debate as to the circumstances in which the remedy should be available. It will determine whether the remedy is discretionary and subject to the usual equitable defences. It may also impact upon the extent of the remedy when awarded, and have a number of practical consequences.