Chapter 23 Restitution, compensation and disgorgement
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This chapter distinguishes between the remedies of restitution, compensation and disgorgement. These measures are often confused and conflated by both courts and commentators, with serious ramifications for coherent legal explication, case resolution and development. Depending on the correct analysis, the amount of gain or loss that results from an event of unjust enrichment may diverge, and it will obviously be in the interests of the plaintiff to seek the higher amount. In such cases, correct characterisation of the nature and availability of the remedy will be critical. Other ramifications also flow: for example, the rules limiting recovery (such as remoteness rules and defendant allowances) and defences which apply to awards of gains, losses, and restitution are different depending on the relevant remedy. The confusion that has arisen from failure to make the necessary distinctions between the remedies is most apparent in the area of ‘reasonable fee’ awards. Here the lengths to which courts have gone to provide compensatory analyses of these awards threatens to destabilise the law of compensation more generally. The chapter concludes that a disgorgement analysis best fits the patterns of reasoning and justifications for user damages awards, with ramifications for bars, defences, remoteness and mitigation considerations.

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