Aggravated, Exemplary and Restitutionary ... - Law Commission

to that remedy. 720
Yet this means that some grave instances of wrongdoing - inter
alia, in terms of the numbers of persons harmed - must go unpunished by the law.
We are extremely reluctant to accept this result, unless compelled to do so by the
clear absence of any practicable solution.
1.160 Very little assistance can be obtained from existing English and Commonwealth
jurisdictions in resolving this issue. Nor does an awareness of the various
approaches adopted in the USA, 721
where ‘multiple plaintiff’ issues regularly arise,
do other than reinforce the perception that this is an intensely difficult area. 722
We
have therefore found it necessary to devise our own scheme.
(a) The nature of, and difficulties caused by, ‘multiple plaintiff’ claims
1.161 One course of conduct may constitute or involve wrongs against more than one
person; each victim may have a separate cause of action. Where the course of
conduct is not just ‘wrongful’, but also ‘punishment-worthy’, then the apparent
corollary is that each plaintiff should have a claim to punitive damages. In such
circumstances there is a real risk that the defendant may be excessively punished.
(b) Our basic principle: ‘first past the post takes all’
1.162 We consider that the plaintiffs who are ‘first past the post’ must ‘take all’. This has
several implications. The first action in which punitive damages are awarded to
one or more ‘multiple plaintiffs’ will be the only action in which they can be
awarded by a court (the ‘first successful action’). The defendant’s liability to pay
punitive damages for the conduct that is punished in that action is thereafter
extinguished; 723
thus no ‘multiple plaintiff’ has any right to claim any further sum
of punitive damages in respect of it. Furthermore, even if other multiple plaintiffs
have well-founded claims to punitive damages, they will have no right to any part
of the award(s) made in the first successful action.
720 See, in particular, para 4.47 above, discussing AB v South West Water Services [1993] QB
507. See also S M Waddams, The Law of Damages (2nd ed, 1991) para 11.430; having
considered some of the problems raised, he concludes that “[t]hese considerations tend
against the award of any exemplary damages in such cases”. Professor Waddams expressed
similar views on consultation.
721 Legislative intervention, proposed or enacted, has included: ‘caps’; a ‘first comer gets all’
rule; a rule which ‘credits’ a defendant with prior punitive payments; a rule which permits
punitive damages class actions at the instance of a defendant; the consolidation of all
multiple punitive claims; the use of an injunction against the enforcement of individual
punitive judgments until they could all be consolidated for a single administration in a
single court; and the bifurcation or trifurcation of trials, to separate liability and damages
issues from punitive proof. The courts have generally recognised multiple punitive liability.
722 See, for example, D B Dobbs, Law of Remedies (2nd ed, 1993) § 3.11(8), pp 337-341, in
which he concludes that “it seems safe to say that none of the solutions so far provided by
either courts or legislatures seem satisfactory”. Most legislative intervention, proposed and
enacted has, he suggests, “so far failed to recognise the complexities of the problem of
multiple punitive awards”. The courts have meanwhile seemed “rather casual in their
willingness to inflict repeated punishments for a single act”, a possibility which we reject, on
grounds of unfairness to defendants (that is, the unfairness of ‘excessive’ punishment).
723 There will obviously be no bar to claims to punitive damages which are founded on
conduct other than that which was the basis for the claim in the ‘first successful action’.
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