Aggravated, Exemplary and Restitutionary ... - Law Commission

A discretionary or an absolute bar to punitive damages awards?
1.111 Should a court ever be entitled to assess whether any prior criminal punishment in
respect of the ‘same’ conduct is ‘adequate’ to punish and deter, and if it considers
that it is not, be entitled to make a punitive damages award in order to make up
the ‘shortfall’? Although this approach purports to avoid the problem of double
punishment, we have serious reservations about its practicability, as well as its
justification as a matter of principle. For wherever a defendant has already been
convicted and punishment (or no punishment) has been exacted by the criminal
courts, there are a number of cogent reasons why this should be treated as a
complete and automatic bar to any punitive award in respect of the same conduct.
In other words, there are strong reasons why a civil court should not even be
permitted to address the question of whether the criminal punishment is adequate.
The most important of these reasons are:
(1) It is very difficult accurately to assess what level of punitive damages is the
‘equivalent’ of the various forms and levels of criminal punishment; such an
estimate would, however, be required in every case, in order to see if a ‘top
up’ punitive award should be awarded by the civil law.
(2) It would arguably challenge the authority and integrity of criminal courts, if
civil courts were to make ‘topping up’ punitive awards; the implication
would be that the criminal courts had wrongly judged what was necessary
in order to punish and deter. Nor can it be desirable to permit victims,
who are dissatisfied with what they consider are ‘lenient’ criminal
punishments, the opportunity to obtain more severe punishments by means
of the civil law. If they are dissatisfied, then an appeal within the criminal
court structure is the appropriate route - rather than what amounts to an
appeal by the sidewind of the civil justice system.
(3) Criminal courts are likely to engage in a far more extensive, and possibly
expert, assessment of an offender’s circumstances; it would be dangerous
for a civil court to make a judgment about the sufficiency of any criminal
punishment, on the basis of different and less complete information.
1.112 Nevertheless, we have come to the conclusion that it would be inappropriate to
advocate a complete and automatic bar; rather a court should have a discretion to
refuse to consider or make an award of punitive damages, where a defendant has
already been convicted by a criminal court. ‘Hard’ cases could well arise, in which
it might, exceptionally, be appropriate for a court to proceed to the ‘assessment’
stage. For example, a newspaper may publish an article which is both defamatory
and in contempt of court. It does so in the knowledge that its circulation increase
is so large as to more than exceed the damages that it might have to pay. It cannot
be right for the court to refuse to award punitive damages merely because there
has been a fine for contempt of court. Yet this is what, on a straightforward
interpretation and application, the ‘same conduct’ concept seems to require.
1.113 Accordingly, whether a claim to punitive damages is unavailable because of prior
criminal punishment in respect of the same conduct ought to be a matter of
discretion for a civil court. But because of the very strong arguments for barring a
punitive damages claim in such circumstances, we would hope that the courts
would only exceptionally find that punitive damages could be awarded, in a case
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