Aggravated, Exemplary and Restitutionary ... - Law Commission

1.185 Some palliative could, if necessary, also be provided by the ‘safety-valve
discretion’. 732
A court might, if it was aware that the plaintiff or group of plaintiffs
before it represented only a small proportion of present (or perhaps also, likely)
litigants, refuse to make any award in that action by exercising the last resort
discretion. That a court had exercised the discretion to prevent an award going to
the first individual or group of successful claimants in one case should not prevent
an award being made to a subsequent (substantial) group of claimants in a later
action. Indeed, such a later award would be entirely consistent with the
justification for exercising the ‘safety-valve discretion’ to preclude an award in the
earlier action. If this became established judicial practice, then ‘first’ plaintiffs
would have a much reduced financial incentive to race to court to claim punitive
damages.
(5) Multiple defendants
1.186 The law may regard the liability of two or more persons as either ‘joint’ or ‘joint
and several’ in a number of different circumstances. For example, two or more
people may independently act in a wrongful manner, and thereby cause the same
indivisible damage to another. In law they are ‘jointly and severally liable’ to
compensate the plaintiff for that indivisible damage. Alternatively, two or more
people may be regarded by the law as ‘joint wrongdoers’ because they have taken
concerted action to a common (wrongful) end. In law they are ‘jointly liable’ to
compensate the plaintiff for the injury which he or she suffers as a result of the
joint wrong. Employers are vicariously liable for the torts of their employees (or
‘servants’). In law they are ‘jointly liable’ with their wrongdoing employee to
compensate the plaintiff for injury which he or she suffers as a result of those torts.
Similarly, partners are ‘jointly and severally’ liable by statute 733
for the wrongs of
their co-partners. What should be the individual liabilities to pay punitive damages
(if any) in each of the above cases, where not all of the wrongdoers acted in a
punishable, or similarly punishable, manner?
1.187 For reasons which we explain below, 734
we consider that vicarious liability, as well
as the liability of partners for the wrongs of their co-partners, should be treated
somewhat differently from other examples of multiple defendants. Accordingly, the
discussion which follows deals only with the other examples of multiple
defendants.
(a) The problems of the existing approach
1.188 In principle, one would expect that punitive damages should be payable, but only
payable, by those who have acted in a manner which warrants punishment, and
only to the extent necessary to punish them for what they have done. The existing
law in England does not reflect this principled conclusion.
1.189 The English common law attempts to fit liability to punitive damages within the
framework of joint and joint and several liability (hereafter simply ‘concurrent
732 See paras 5.118-5.119 above.
733 Partnerships Act 1890, s 10; see also ss 11-12.
734 See paras 5.204-5.205 and 5.213-5.224 below.
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