Aggravated, Exemplary and Restitutionary ... - Law Commission

1.85 But even if, in the long-term, recent developments have the effect intended, we
remain convinced that universal judicial assessment is the best way forward. The
‘remedies’ offered by recent cases are palliatives, and not cures, for defects in the
process of jury assessment. In particular, it remains a fundamental principle,
unaffected by recent developments, that a jury gives no reasons for its decision.
This has two unfortunate implications. The first is to inhibit ex post facto appellate
control of jury awards in particular cases, even though the criteria for appellate
court intervention are less strict now than was formerly the case, following Rantzen
v MGN Ltd. 667
The second is that unreasoned awards are much less likely to be
consistent, moderate and proportionate awards; yet all three qualities are essential
if punitive damages are to be a legitimate legal remedy. Accordingly, even if it
could be shown that jury awards had become consistent, moderate and
proportionate, this outcome would be largely a matter of chance.
1.86 Unlike juries, judges are expected, and generally required, to give reasons for their
decisions. Many of the limits which we impose on our expansion of the availability
of punitive damages can be fully effective only on the assumption that the body
with responsibility for deciding claims to punitive damages gives reasons. As a
result, and because we take very seriously indeed the need to constrain our
‘expansion’, that decision-maker should be a judge. Previous decisions can only be
truly useful to future courts and to future litigants, because of the diversity of
circumstances relevant to awards of punitive damages, if they are reasoned
decisions. A tariff is realistic only on the assumption that there are reasoned
decisions out of which it can be constructed. The flexible concepts used in our
tests of availability (for example, ‘deliberate and outrageous disregard of the
plaintiff’s rights’) can be given content only if decision-makers can and do explain
what, in the case before them, made the defendant’s conduct ‘outrageous’. The
‘last resort’ discretion can only function as it should if the court makes known
what very exceptional reason led it to refuse to award punitive damages, even
though all of the tests of availability were satisfied and a substantial award was
prima facie merited. The discretion as to the amount of punitive damages can only
be ‘structured’ by the principles of moderation and proportionality, and by the
statutory list of relevant factors, if the award not only takes into account those
principles and factors, but is also justified by reference to them. And if the court
takes into account a ‘relevant factor’ not specified in the (non-exhaustive) statutory
list, it must at the very least specify what that factor was.
1.87 We therefore consider that the arguments of principle for judicial determination of
the availability and assessment of punitive awards are very strong. Nevertheless,
there are two arguments that the functional ‘split’ which we propose between jury
and judge (with the jury continuing to decide on liability and the quantum of
compensation and restitution) is an unworkable one.
wife), and £80,000 (Richard Kirby), respectively. She suggests that libel damages awards
“remain as unpredictable as ever, despite legislative and judicial attempts to bring them into
line with personal injury awards”; her explanation is the “source of the award”: “[w]hen
juries decide the amount of damages, they are likely [to] give verdicts which may run
contrary to the guidelines, with or without evidence from an expert witness”.
667 [1994] QB 670. See paras 4.64 and 4.87-4.89 above.
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