Aggravated, Exemplary and Restitutionary ... - Law Commission

(iii) A ‘last resort’ remedy (2): the relevance of conviction in criminal proceedings
1.103 The principle that punitive damages must be a ‘last resort’ remedy has other
implications. A defendant may already have been convicted by a criminal court of
an offence involving the conduct for which punitive damages are claimed and
punishment may have been exacted from him or her. It would be unacceptable if
a defendant could be punished twice over for the same conduct - once by the
criminal law and once by the civil law through an award of punitive damages. The
more difficult question is how double punishment can best be avoided, where
punitive damages are claimed in a civil court. This raises three issues:
(1) how should we identify the conduct which has already been the subject of
criminal proceedings, for which punitive damages should not also be
available?
(2) is the mere fact of ‘conviction’ in a criminal court sufficient to bar an award
of punitive damages, or should only certain types of punishment upon
conviction have this effect?
(3) should a punitive damages award, directed at ‘identical’ conduct that has
already given rise to a conviction in a criminal court, automatically be
barred by the fact of that conviction, or should the court only have a
discretion to bar any award on this ground?
What concept of ‘identity’ of conduct or wrongdoing do we use?
1.104 There is an obvious difficulty in formulating an adequate concept of conduct that
is ‘identical’ for the purposes of the ‘double punishment’ concern. In particular,
one cannot use ‘same offence’ or ‘same wrong’. As the concept is not for use
solely within the criminal law or the civil law, respectively, but rather across the
boundary of the criminal and civil law, one cannot employ terms which are unique
to, or have particular (different) meanings within, each sphere.
1.105 A better concept would refer instead to a common factual basis. This means that
conduct is the ‘same’ where the facts which are alleged in support of the claim to
punitive damages are substantially the same as those on the basis of which the
defendant was convicted of a criminal offence. The draft Bill uses the phrase “an
offence involving the conduct concerned”. We are confident that this will be
construed and applied sensibly, and not restrictively. 686
686 We are particularly concerned to avoid the conclusion that the offence for which the
defendant was convicted does not ‘involve’ the ‘conduct concerned’ (ie that which supports
the claim to punitive damages), simply because the plaintiff is able to prove in civil
proceedings some additional fact which had not been sufficiently proved in the criminal
proceedings, and which entails that the defendant’s conduct was more culpable than it
appeared to the criminal court which convicted him or her of the offence. For example, the
defendant may have been convicted of the offence of inflicting grievous bodily harm (s 20 of
the Offences Against the Person Act 1861), but a civil court may be satisfied that the
defendant in fact intended to cause the plaintiff grievous bodily harm - a mental state which
could, if proved in the criminal proceedings, have led to conviction for the rather more
serious offence under s 18 of the Offences Against the Person Act 1861.
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