Aggravated, Exemplary and Restitutionary ... - Law Commission

• requiring the court to refuse to award punitive damages where the
defendant has been convicted of a criminal offence involving the
conduct for which punitive damages are claimed, unless there are
exceptional reasons why an additional award of punitive damages is still
necessary and appropriate
• requiring the court to take into account the fact that other sanctions
may already have been imposed (for example, in disciplinary
proceedings) in respect of the conduct for which punitive damages are
claimed, which make an additional award of punitive damages
unnecessary or otherwise inappropriate
• preserving a residual, ‘safety-valve’ discretion to refuse to make a
punitive damages award in exceptional cases, even where the tests of
availability are otherwise satisfied
• statutory structuring of the court’s assessment of awards, by means of
overriding principles of ‘moderation’ and ‘proportionality’, and by a
non-exhaustive list of factors which are relevant to such assessments
(i) Determination of availability, and assessment, by judges not juries
1.81 We recommend that the availability and assessment of punitive damages should
always be decided by the trial judge and never by a jury. 654
Where trial is otherwise
by jury, and punitive damages have been pleaded, the jury will continue to
determine liability 655
and to assess compensatory damages 656
and restitutionary
damages. However, the judge would then decide whether punitive damages are
available, 657
and would assess the quantum of those damages. We would envisage
that the judge would direct the jury that, whilst liability and the amount of
compensation (or restitution) are matters for them, the questions as to whether,
exceptionally, punitive damages should be awarded, and their quantum, are
matters for the judge alone to decide.
1.82 This recommendation will mean that, where trial is at present by judge and jury,
and punitive damages are claimed, the jury’s role will be reduced. 658
Nevertheless,
we consider that this reallocation of responsibility is justified in principle, and
essential if ‘consistent’, ‘moderate’ and ‘proportionate’ awards are to be a reality.
Cases have demonstrated a disturbing arbitrariness and excess in the sums
654 In Aggravated, Exemplary and Restitutionary Damages (1993) Consultation Paper No 132,
para 6.33, we provisionally rejected the option of judges taking over the role of juries in
assessing damages. But the majority of consultees disagreed with that provisional view. See
also Damages for Personal Injury: Non-Pecuniary Loss (1995) Consultation Paper No 140,
paras 4.82-4.104, especially para 4.84.
655 ‘Liability’ here refers to the issue of whether a relevant civil wrong has been committed.
656 This includes damages for mental distress.
657 See, in particular, the test of ‘deliberate and outrageous disregard of the plaintiff’s rights’, at
paras 5.46-5.48 above.
658 An incidental effect of our proposals may be that there will be fewer applications for jury
trials in civil cases.
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