Date: Sun, 5 Nov 2006 16:45:27 +0000

From: Robert Stevens

Subject: Defamation and compensation for enrichment

As a matter of principle, you can argue for whatever basis of compensation that you find attractive - compensatory, punitive, restitutionary.

I am not sure I understand this. Perhaps you meant "whatever basis of remedy that you find attractive ..." Compensation = making good a loss. The whole point of punitive and restitutionary measures is that they are not measures of compensation at all.

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 didn't, and don't, deny that. Has anyone?

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.

Well, I would be very surprised if Allan Beever has changed into being a defender of punitive damages. See here.

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.

Well, again, I just don't deny any of that.

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.

Well, again, I don't deny any of that. What I rejected was your proposition that there is something 'arbitrary' about the gain based response. What I denied was the validity of the objection that a restitutionary response is a poor surrogate for making good the loss suffered by the claimant. That is to misrepresent the position of those, such as Allan and Jason, who argue for the availability of responses other than compensation.

As it happens, I disagree with Allan about the narrow scope for punitive damages in the common law, and think that the courts have very infrequently given a truly gain based response to a wrong. I also don't think there is much mileage in relying upon the extract from Devlin he relies upon. None of that is very important, however, as that was not my point.

Lord Devlin shared the view of some Torts textbook writers that the law of torts is all about determining who is deserving of compensation for losses suffered (see P Devlin, The Enforcement of Morals (1965) 39-40). It is for this reason that he cut back the availability of punitive damages in Rookes v Barnard. My view is that this is a mistake as to what the law of torts is all about (cf Broome v Cassell [1972] AC 1027, 1114 per Lord Wilberforce.) No other (major) common law jurisdiction followed the English lead in Rookes v Barnard. I think they were right not to do so.

Robert Stevens

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