Date: Fri, 3 Nov 2006 13:51:02 +0000

From: Steve Hedley

Subject: Defamation and compensation for enrichment

I am puzzled that you place so much weight on Devlin's opinion, as you acknowledge it is so completely contrary to your own. He is explicit that the object of the award he is discussing "is to punish and deter" ([1964] AC at 1221). If he is wrong about that, why exactly is he so trustworthy on other lesser points?

The reason why it matters that the award was made by a jury is precisely that the judge doesn't have to concern his/herself with the quantum. The question in the case was, how the matter should have been left to the jury. It is therefore very unlikely that Devlin would have been asking himself precisely what figure should be awarded or how it should be arrived at. Personally I can see nothing about quantum in the passage cited, which seems to me to concern the availability of any award, and its purpose if available.

I am also bemused at your advice to read the passage while imagining that "you believe that Lord Devlin thought that the only way to justify disgorgement of the profit was punishment". Since the correctness of that assumption is precisely what we are disagreeing about, you are effectively suggesting that Devlin is to be taken as supporting your view unless he expressly contradicts it. To which I would reply: do you have any stronger authority than that?

Steve Hedley
Faculty of Law, University College Cork

-----Original Message-----
From: Allan Beever
Sent: 03 November 2006 12:28
Subject: Re: ODG: 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.

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