Date: Thu, 2 Nov 2006 13:56:44 +0000

From: William Swadling

Subject: Defamation and compensation for enrichment

But is the reason why English law does not award restitutionary damages for the wrong of defamation not just a hangover from the forms of action? As is well known, while the forms of action were on foot, the main tool used by litigants for switching from loss-based to gain-based responses was 'waiver of tort'. This involved a fictitious claim of agency, that the acts complained of were not in fact tortious but carried out by the defendant as agent of the plaintiff. This had the ridiculous effect that only certain torts could, like conversion, be waived, and others, such a punch on the nose, because it could not be dressed up as the act of an agent, could not. Defamation was one of those which could not be waived. As Viscount Simon LC said in United Australia v Barclay's Bank [1941] AC 1, 13

it is clear that there are torts to which the process of waiver could not be applied; the tort of defamation, for example, or of assault could not be dressed up into a claim in assumpsit.

But the answer to this objection is contained in Lord Atkin's speech in the same case:

These fantastic resemblances of contracts invented in order to meet requirements of the law as to forms of action which have now disappeared should not in these days be allowed to affect actual rights. When these ghosts of the past stand in the path of justice clanking their mediaeval chains the proper course is for the judge to pass through them undeterred: [1941] AC 1, 29.

With that in mind, there seems no logical reason why a gain-based award should not be made. Of course, there may be more practical problems, such as exactly how the gain is to be assessed, but there seems no reason in principle why restitutionary awards could not be made for the wrong of defamation.

Bill Swadling

----- Original Message -----
From: KA Oliphant
To: Mårten Schultz
Sent: Thursday, November 02, 2006 11:49 AM
Subject: Re: ODG: Defamation and compensation for enrichment

Hi Mårten

Welcome to the list. Good to spread the geographical diversity of list members. Looking forward to hearing more about topical issues in Swedish tort law.

On the issue you raised, English law wouldn't award restitutionary damages, but punitive damages could well be available and - as has often been remarked - their effect (perhaps even their purpose) may be to strip the wrongdoer of his ill-gotten gain. In fact, punitive damages in the English common law are available are available only in the following two situations: (1) oppressive, arbitrary or unconstitutional action by the servants of the government, and (2) where the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff (Rookes v Barnard [1964] AC 1129 at 1226, per Lord Devlin). In considering the latter category, Devlin specifically referred to damages for libel - "one man should not be allowed to sell another man's reputation for profit" - and concluded: "it is necessary to teach a wrongdoer that tort does not pay" (p. 1227).

<<<< Previous Message  ~  Index  ~  Next Message >>>>>