Aggravated, Exemplary and Restitutionary ... - Law Commission

e so where the defendant consents to the court doing so. Were it otherwise,
problems could arise because of the confidentiality of settlements. In practice,
therefore, the onus would be on the defendant to bring any settlement to the
attention of the court if he or she wishes it to be taken into account.
1.174 We therefore recommend that:
(33) provided the defendant consents to this, a court should take into
account any settlement which the defendant may have reached with
multiple plaintiffs in deciding:
(a) whether punitive damages are available, or
(b) if so, how much should be awarded
to multiple plaintiffs with whom the defendant has not reached a
settlement. (Draft Bill, clause 7(2))
1.175 This proposal will mean that settlements may be a reason, depending on the
circumstances, for a court to refuse punitive damages to multiple plaintiffs; or, in
the alternative, for awarding a lower amount than would otherwise be appropriate
(because, in particular, the aggregate of the settlement sums and the sums which
the court is minded to award will excessively punish the defendant for his or her
conduct).
(d) Some potential objections to our scheme and our response to those
objections
1.176 The ‘first past the post takes all’ principle may, at first sight, appear objectionable.
We now review, and then respond to, likely objections.
(i) “It is unfair to deny punitive damages to multiple plaintiffs who are not parties to
the first action in which a claim to punitive damages succeeds”
1.177 The first objection is that it is ‘unfair’ to deny an award of punitive damages to a
multiple plaintiff for the sole reason that one or more other multiple plaintiffs have
already been awarded punitive damages in respect of the (same) conduct of the
defendant. If they can establish an otherwise good claim, do they not have a ‘right’
to an award of punitive damages, or if not, to some share in the awards that have
previously been made? Were they not equally (or conceivably, more) wronged by
the defendant’s conduct?
(ii) “The first successful claimants could receive a massive windfall”
1.178 The second objection is to ‘excessive windfalls’. By restricting the entitlement of
multiple plaintiffs to receive punitive damages to those of their number who are
‘successful’ in the first action in which punitive damages are successfully claimed
by multiple plaintiffs, ‘first successful claimants’ may be left with very substantial
awards of punitive damages. If, as we accept, an award of punitive damages is
always a windfall to a plaintiff who receives it, does that ‘vice’ not increase as the
size of the award to individual plaintiffs increases?
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