Disgorgement of profit : a potential remedy for tort victims under Maltese law on damages?

Abstract

Undoubtedly, the term ‘disgorgement of profit’ is not widely known. Even in those jurisdictions where the remedy, or something similar, has become available, it is often referred to through other, often confusing, names. The remedy of disgorgement of profit seeks to strip a wrongdoer of the profits that one earns from committing a wrong. While it could, theoretically, be made available in various areas of private law, this thesis examines whether a general remedy could be introduced for breaches of tort law. In order to do this, the thesis starts by examining the remedy of disgorgement of profit and proceeds to examining the concept of tort. It had to be determined whether the concept of tort itself excludes, a priori, the remedy of disgorgement of profit. This does not seem to be the case. The thesis goes on to justify, mainly by reference to the theory of corrective justice, that the profits that are stripped from the defendant should be awarded to the plaintiff, thus allowing the Court to order a disgorgement of profit as a remedy for tort. In chapter 3, an analysis is provided of the approach to disgorgement of profit taken by jurisdictions from the Common Law, Civil Law, and Mixed Legal Systems. All the jurisdictions approach the concept differently, but none of them provides a general remedy under the general rules of tort. Following this, an examination of disgorgement of profit as applied in Malta is provided. While the term may be unknown, the remedy has been made available in specific pieces of legislation, especially those relating to intellectual property. This analysis leads to the conclusion that the remedy could be introduced through a proviso to Article 1045 of the Civil Code, thus giving the plaintiff the right to demand a disgorgement of profit where appropriate.