Introduction to Part Two

It is commonplace “that the policy of law is to view with disfavour a wrongdoer benefiting from his wrong”. ¹ On this policy the law has erected “the principle that no one should be permitted to gain from his own wrongdoing”. ² But although this principle “has an obvious attraction”, ³ it is, as Lord Goff of Chieveley has pointed out, “in very general terms, and does not of itself provide any sure guidance to the solution of a problem in any particular case”. ⁴ Therefore, as Bowen L.J. ⁵ recommended, the principle “must be carefully considered, and expressed in more precise terms, before it can be safely applied”. ⁶ In the first place there are different types of wrong, not all of which may attract application of the principle. Thus although the principle applies to benefits acquired through crime (Chapter 9), it is not quite clear how far it applies to other types of wrongs such as tort or breach of contract. Secondly, even in the case of those wrongs to which the principle is applicable it is necessary to determine the parameters of its application and the 204remedies used to strip the wrongdoer of his ill-gotten profit. ⁷ For, it is important to note, although there is a clear principle that no one should be allowed to profit from his own wrong, it is not buttressed by any general proposition that the victim of the wrongdoing should retain or recover the amount of the wrongdoer’s profit even where he, the victim, has suffered no loss. ⁸ Such a proposition, it has been said, is “less obviously persuasive” ⁹ than the main principle. There is in English law no “universally applicable principle that in every case there will be restitution of benefit from a wrong”. ¹⁰