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Date:
Fri, 3 Nov 2006 12:27:48 +0000
From:
Allan Beever
Subject:
Defamation and compensation for enrichment
As I said, I acknowledge that
Lord Devlin described the award as punitive. But I think that it
is far from clear that his view was not that the award should serve
to strip the profit. That seems to me to be a natural reading of
the judgment - and indeed one that has been suggested by others
in this discussion, and not just those who support corrective justice
theory. But I reproduce the passage here so that others can come
to their own conclusions. Even if you don't agree with my line on
this, just try reading this passage imagining that you believe that
Lord Devlin thought that the only way to justify disgorgement of
the profit was punishment - as indeed lots of people did and do
believe. Then, perhaps, you will see how one could regard the passage
in this way. On that reading, passages such as "Exemplary damages
can properly be awarded whenever it is necessary to teach a wrongdoer
that tort does not pay" is taken to point precisely to disgorgement.
And the fact that the jury makes the award is, as far as I can see,
irrelevant.
Cases
in the second category are those in which 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. ...
It is a factor also that is taken into account in damages for
libel; one man should not be allowed to sell another man's reputation
for profit. Where a defendant with a cynical disregard for a plaintiff's
rights has calculated that the money to be made out of his wrongdoing
will probably exceed the damages at risk, it is necessary for
the law to show that it cannot be broken with impunity. This category
is not confined to moneymaking in the strict sense. It extends
to cases in which the defendant is seeking to gain at the expense
of the plaintiff some object - perhaps some property which he
covets - which either he could not obtain at all or not obtain
except at a price greater than he wants to put down. Exemplary
damages can properly be awarded whenever it is necessary to teach
a wrongdoer that tort does not pay.
Hedley,
Steve wrote:
Your
point, as I understand it, relies on the assumption that the measure
of exemplary damages bears a close resemblance to the amount of
the profit made. But, as Jason has already noted, that is not the
law. The amount of profit is, at most, simply one factor to be borne
in mind in deciding the extent to which the defendant needs to be
punished - as is clear from Rookes and other cases. The
award may be less or more than the profit made, as the jury think
fit.
As
to Lord Devlin's opinion, this nowhere states that "damages
can be used in order to strip the profit made". Devlin is explicit
that the purpose is punishment (it is to show the defendant that
the law "cannot be broken with impunity", as he put it).
He is also clear that the quantum is to be left to the jury. None
of this sits well will the idea that the remedy is "based on
restitution or disgorgement than punishment" - even assuming
that that distinction is accepted in the first place. It is disingenuous
say that the opinion does not authorise an award of more than the
profit made: the opinion is very light on any suggestions for the
size of the award, and says nothing either way.
Of
course, if the restitutionary remedy existed, it would be attractive
to plaintiffs precisely because it *wouldn't* involve the punitive
question that the current law asks, namely whether the defendant
deserves such a penalty. The question is, given the (limited) existence
of the flexible remedy for exemplary damages, whether the additional
restitutionary remedy would be needed.
--
Dr Allan Beever
Reader in Law
Department of Law
50 North Bailey
Durham
DH1 3ET
United Kingdom
FAX : +44 191 334 2801
Internal Telephone: 42816
External Telephone: +44 191 334 2816
http://www.dur.ac.uk/a.d.beever/
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