Date: Sun, 5 Nov 2006 14:06:49 +0000

From: Michael Jones

Subject: Defamation and compensation for enrichment

Dear Robert,

No, I only made the point once. I think that Mårten included my message as a preface to his last message.

As a matter of principle, you can argue for whatever basis of compensation that you find attractive - compensatory, punitive, restitutionary. As a matter of law, I think one would be hard-pressed to find a defamation case in English law in which the restitutionary basis was approved (I appreciate that the basis on which juries make their awards is hidden from us, so it may happen in some cases). I guess this puts me in Steve Hedley's camp.

I found Allan's last point attractive: "Isn't it odd that Devlin would be so hostile to exemplary damages for most of the judgment but then be so gung ho for them when the D calculated to make a profit? I think that this would be very odd, and my interpretation of Devlin's intentions is designed to avoid or, at least soften, this conclusion. What is so special about the D trying to profit? It is surely near impossible to think that that someone of the intelligence of Lord Devlin thought that it is appropriate to punish someone when and only when he tried to make a profit."

But in the end not persuasive, because the very clear objection to exemplary damages running through the speeches in Rookes v Barnard is the standard argument that it is wrong to expose a defendant to punitive sanctions without the protections of the criminal law. Calculated profit-making at the claimant's expense is treated as a reason for an exception to the prohibition on exemplary damages (as is oppressive, arbitrary or unconstitutional conduct by agents of the government - so it is not strictly correct to say that "Lord Devlin thought that it is appropriate to punish someone when and only when he tried to make a profit"). If Lord Devlin had wanted to deal with profit-making on a restitutionary basis he could readily have done so and avoided the objection that permitting exemplary damages leaves a category of cases in which punitive sanctions can be imposed without the protections of the criminal law.

In other words, it seems to me that one can argue that Devlin ought to have approached the case on a restitutionary basis, but it is very difficult to conclude that he actually did approach the case on a restitutionary basis. Although I spend a fair bit of my time telling students not always to believe everything that the judges say they are doing, sometimes one is forced to the conclusion that they mean what they say.

Michael

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Michael A. Jones
Professor of Common Law
Liverpool Law School
University of Liverpool
Liverpool
L69 3BX

Phone: (0)151 794 2821
Fax: (0)151 794 2829
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From: Robert Stevens
Sent: Sun 05/11/2006 10:42
To: Mårten Schultz
Cc: Jones, Michael
Subject: Re: SV: RE: ODG: Defamation and compensation for enrichment

Michael,

This is a point which you have made twice and as it has not attracted a response, I'll give one.

The whole question is whether or not the only remedial response available is one which seeks to make good the claimant's loss/damage. If we start from the assumption that the law is, and is only, concerned to make good the claimant's loss, broadly defined so as to include intangible interests such as our interest in our good name, then of course making an award measured by the defendant's gain is wholly arbitrary. There is, of course, no necessary correlation between the size of the defendant's factual gain from the wrong and the claimant's loss, however broadly defined. Nobody, so far, has claimed that there is.

Again, if you thought that the award has to be justified as a punishment for the defendant's dreadful behaviour, or to deter others from committing the wrong, I can well see that a gain based response is, at best, a blunt tool for achieving these ends. However, Alan Beever in his initial post was not claiming that this was the reason for the courts adopting such a remedial response.

The question which needs to be resolved is whether (i) as a matter of principle or (ii) as a matter of law, your initial assumption is correct. That is what everyone else is arguing about. For some wrongs/torts it clearly is not right, and the issue is whether in relation to defamation a remedial response which does not have as its purpose the making good of the claimant's loss, however defined, is available.

I am not here siding with, or opposing, those who claim that a gain based award should be available.

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