Part Three Restitution and punishment, 19 Restitutionary remedies (for torts and breach of contract)
Andrew Burrows QC FBA
- Remedies for breach of contract — Loss of profit and damages
This chapter deals with restitution for wrongs where the wrong is a tort or breach of contract. The relevant restitutionary remedies are an award of money had and received and an account of profits. The torts for which restitution has been awarded are where the wrongful conduct constitutes interference with the claimant’s property, whether that property be real, personal, or intellectual. Indeed, an account of profits is a standard remedy for an intellectual property tort and several important issues related to it are explored. Five significant anti-restitution tort cases are also examined. For a breach of contract, an account of profits may exceptionally be awarded as laid down by the House of Lords in Attorney-General v Blake. It is suggested that an account of profits is an appropriate remedy for breach of contract where two factors are present. First, the breach must be cynical, deliberately calculated to make gains. Secondly, normal compensatory damages must be ‘inadequate’.