Aggravated, Exemplary and Restitutionary ... - Law Commission

awarded as damages (including exemplary damages) to plaintiffs by juries. 659
As
Lord Woolf MR said of awards for the torts of false imprisonment and malicious
prosecution made against the police:
We have ... been referred to a number of cases in which juries have
made awards, both cases which are under appeal and cases which are
not and the variations in the range of figures which are covered is
striking. The variations disclose no logical pattern ... 660
Similarly, the Neill Committee’s Report on Practice and Procedure in Defamation, 661
which proposed the abolition of exemplary damages for the tort of defamation, was
heavily influenced by the arbitrariness of the sanction, 662
in the hands of juries:
... the decision whether to award [exemplary] damages and, if so, what
the size of the award should be is left to a lay jury with no guidance on
quantum and inevitably no possibility of a decision in accordance with
any kind of tariff. This at a time when, in sentencing policy generally,
consistency and predictability are goals constantly striven for both by
means of statutory intervention and by way of judicial sentencing
conferences and seminars. 663
1.83 It could be argued that the change which we propose is now unnecessary, because
of recent common law developments dealing with jury damages awards. We have
already discussed at length the recent line of cases which (i) permit and state more
detailed guidance for juries on how to assess exemplary damages, and (ii) extend
appellate court control of jury-assessed awards. 664
The argument may be made
that these developments substantially reduce the risks of ‘arbitrariness’ and ‘excess’
which provide a primary justification for judicial, rather than jury, assessment.
1.84 That argument is, so far, contradicted by experiences after John v MGN Ltd 665
in
libel cases. Even where a judge has specifically followed the recommendations of
the Court of Appeal in that case, very substantial damages awards for libel have
still been made. 666
659 One argument provided by the Ontario Law Reform Commission in favour of retaining the
jury’s role in assessing exemplary damages was that there was no evidence that Ontario
juries had made arbitrary and excessive awards: Report on Exemplary Damages (1991) p 49.
660 Thompson v MPC [1997] 3 WLR 403, 415D-E.
661 Supreme Court Procedure Committee, Report on Practice and Procedure in Defamation (July
1991).
662 Supreme Court Procedure Committee, Report on Practice and Procedure in Defamation (July
1991) ch IV, para 11: “[a]t least in criminal proceedings plaintiffs would be ... subject to far
less arbitrary sanctions”.
663 Supreme Court Procedure Committee, Report on Practice and Procedure in Defamation
(July 1991) ch IV, para 8.
664 The main cases are: Rantzen v MGN Ltd [1994] QB 670; John v MGN Ltd [1997] QB 586;
and Thompson v MPC [1997] 3 WLR 403. They have been discussed at length in Part IV,
paras 4.61-4.67 and 4.86-4.98 above.
665 [1997] QB 586.
666 J Scott Bayfield, The Lawyer, 29 April 1997, p 18, discussing a case decided last March in
which three plaintiffs were awarded £250,000 (Richard Wilmot Smith QC), £100,000 (his
123