ABSTRACT
One strand of thinking lying behind recovery for wrongs is the idea that the law should pursue a general policy of preventing anyone from profiting from his wrong, at least where he has acted deliberately. ‘The broad proposition that a wrongdoer should not be allowed to profit from his wrong,’ said Lord Nicholls, ‘has an obvious attraction.’5 Coupled with this is, of course, the idea of deterrence: deliberate infringement of others’ rights ought to be discouraged, even at the cost of allowing claimants to obtain an occasional windfall. The possibility of exemplary damages for deliberate wrongs aimed at making a profit is a clear instance of such thinking. It is exemplified by Lord Devlin’s dictum in the English case of Rookes v Barnard6 that ‘tort should not pay’,7 together (in England) with at least one statutory instance.8 Largely on this basis, it has been further argued by Jones and others9 that cynical breaches of contract and other deliberate wrongs calculated to make a profit ought to trigger a restitutionary response – a suggestion accepted, albeit obiter, by the High Court
5 AG v Blake [2001] 1 AC 268, p 278. The context was restitutionary damages for breach of contract: see below, § 11-8 et seq.
