Aggravated, Exemplary and Restitutionary ... - Law Commission

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survival for the benefit of the victim’s estate, and failed specifically to consider the present rules on survival against the wrongdoer’s estate. 829 Nevertheless, we have been sufficiently persuaded by the arguments in one clear response on this issue, given by Professor Tettenborn, to feel confident that the existing approach should not stand. Professor Tettenborn writes: On the question of survival against the estate of the defendant ... I disagree with the tentative suggestion that exemplary damages should be assimilated to other causes of action. On the point of principle, we are here dealing with punishment; no question of compensation arises. In such a case there seems no need to visit the sins of the parents on the children and the heirs. Suppose a policeman guilty of brutality subsequently dies; it seems inhumane to tell his widow and children that, even though the victims have been fully compensated, they are liable possibly to lose their home in order to satisfy a judgment for exemplary damages. Note too the analogy of criminal law, where I do not think it has ever been seriously suggested that we should introduce the posthumous trial of dead offenders with a view to levying a fine on their estates. 1.277 Thus where the wrongdoer who is to be punished is dead, the retributive goal of a punitive award cannot be achieved; only the ‘innocent’ heirs are punished. It can be argued that there is no unfairness in this, because the estate would have been diminished by the same amount even if the wrongdoer had not died. But in our view this argument is refuted by the plausible scenario described by Professor Tettenborn: in such circumstances there may, on the contrary, be very significant unfairness to the defendant’s heirs (his family). Furthermore, it is far from clear that a punitive award has any other significant point, and so justification, where the wrongdoer is dead. ‘Individual deterrence’ offers no argument, for the reason that, having died before the conclusion of an action against him, the wrongdoer cannot act, let alone act wrongfully, in the future. Nor is the argument from ‘general deterrence’ a strong one. Potential wrongdoers would not usually be any less deterred if the law refused to permit an action to survive against a dead wrongdoer. Such persons will generally expect to be alive, not dead, when an action is brought - and if alive, a claim to punitive damages can be made against them. 1.278 We accordingly recommend that: (45) the Law Reform (Miscellaneous Provisions) Act 1934 should be amended in order to prevent punitive damages from being available against a wrongdoer’s estate. (Draft Bill, clause 14(1) and 14(3)) (10) Statutes currently authorising ‘exemplary damages’ 1.279 Parliament has, as we have already seen, 830 rarely thought it necessary to authorise exemplary or punitive damages by statutory provision. It has expressly done so in 829 Some ambiguity in the question which we put to consultees is very probably to blame for this. 830 See paras 4.21-423 above. 178
one case, 831 and arguably done so in another. 832 We consider that consequential amendments are required to each of these statutes. (a) Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951, s 13(2) 1.280 The first amendment needed is to section 13(2) of the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951, which authorises an award of “exemplary damages”. It would be undesirable if that power could be construed as authorising the courts to award a ‘punitive’ sum of damages which was governed by principles other than those stated in our draft Bill. 833 We therefore recommend that: (46) section 13(2) of the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951 should be amended, so that, in place of ‘exemplary damages’, it authorises an award of ‘punitive damages’ to which our Act applies. (Draft Bill, clause 14(4)) (b) Copyright, Designs and Patents Act 1988, ss 97(2), 191J and 229(3) 1.281 The second set of amendments is to sections 97(2), 191J and 229(3) of the Copyright, Designs and Patents 1988. These sections provide, respectively, for an award of ‘additional damages’ for infringement of copyright, performer’s property rights and design right. We have seen that the proper characterisation of additional damages is controversial. 834 In our view the appropriate course is to repeal sections 97(2), 191J and 229(3), and we so recommend: (47) sections 97(2), 191J and 229(3) of the Copyright, Designs & Patents Act 1988 should be repealed. (Draft Bill, clause 14(5)) 1.282 We consider it necessary to take this step for several reasons. Repeal of those sections will eliminate the uncertainty which has surrounded additional damages; the remedy (whatever its proper characterisation) shall thereafter be unavailable. But this will not leave any significant lacunae in the law’s protection of intellectual property rights. 1.283 We have recommended 835 that punitive damages should be available for a statutory civil wrong if an award would be consistent with the policy of the statute in question. All of the wrongs which are affected by recommendation (47) fall into this category. And, we firmly believe, it would be consistent with the policy of the Copyright, Designs and Patents Act 1988 if punitive damages could be awarded in 831 Reserve & Auxiliary Forces (Protection of Civil Interests) Act 1951, s 13(2). 832 Copyright, Designs & Patents Act 1988, ss 97(2), 191J and 229(3). 833 For example, the power might not be subject to the requirement that the defendant has shown a ‘deliberate and outrageous disregard of the plaintiff’s rights’, or to the ‘if, but only if’ test, or to the various other principles which govern the availability and assessment of ‘punitive damages’ under our Act. 834 See paras 4.21-4.22 above. 835 See recommendation (19)(b) and paras 5.57-5.65 above. 179
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THE LAW COMMISSION Item 2 of the Si
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should emphasise at the outset that
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practitioners and academics) consid
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punitive damages should survive for
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and sued, he will, at worst, be mad
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‘exceptional’ 62 conduct or mot
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defendant or his legal advisers per
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an undertaking in damages which was
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likely adversely to affect him or h
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noting the concession by the respon
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Kralj, which was an “excruciating
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two of their lordships who gave jud
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such a restriction, unless one take
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(1) legislation should provide that
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1.3 Historically, a number of diffe
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nuisance 195 has also been recognis
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day market). At first instance, Pet
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equired to trigger an account of pr
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disgorgement to principals of bribe
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disgorge what he has saved by commi
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there is no consensus among comment
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(a) Restitutionary damages should b
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the purposes of the claim to restit
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account of profits and damages but
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area. The problem of ‘election of
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there is no such in-built limitatio
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PART IV EXEMPLARY DAMAGES: PRESENT
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that exemplary damages were not awa
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1.96 These questions were recently
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to be irrelevant to, and even incon
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1.107 Consistently with the apparen
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manner. As shall be seen below, it
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1.117 Major Commonwealth jurisdicti
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In the present case there is the fu
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an aspect of the case which made ex
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1.137 The ‘non-discrimination’
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We have ... been referred to a numb
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Thus it has been suggested that the
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underlying such damages, that of pu
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easons of fairness to defendants: i
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(6) Multiple plaintiffs 1.165 Very
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Legal Services Act 1990 and Rules o
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MR himself suggested figures to ass
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Thompson v MPC achieves its aims, t
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proceeded on the basis that the doc
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would be that to allow insurance wo
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PART V EXEMPLARY DAMAGES: REFORM 1.
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1.8 As regards the divide between t
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3. THE CASE FOR AND AGAINST EXEMPLA
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(5) The criminal approach to vicari
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particularly unsatisfactory to rely
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1.34 On the first interpretation an
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4. OUR CENTRAL REFORM PROPOSALS (1)
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when applying this principle a cour
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indefensible position which the com
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... the availability of exemplary d
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But these concepts are inadequate,
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for a wrong which arises under an A
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view that such an award would be co
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the promise. To award exemplary dam
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else should, actually constitute in
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awarded as damages (including exemp
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1.88 The first argument is that it
Page 127 and 128: (2) the relationship between (on th
Page 129 and 130: was determined, the court could mak
Page 131 and 132: (iii) A ‘last resort’ remedy (2
Page 133 and 134: A discretionary or an absolute bar
Page 135 and 136: 1.117 We have therefore recommended
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Page 139 and 140: (24) our draft Bill should lay down
Page 141 and 142: 1.141 In our view, this is necessar
Page 143 and 144: the punitive damages award on the A
Page 145 and 146: to that remedy. 720 Yet this means
Page 147 and 148: (31) once punitive damages have bee
Page 149 and 150: e so where the defendant consents t
Page 151 and 152: 1.183 We also think that any ‘adv
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Page 155 and 156: (c) Implications of the adoption of
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Page 159 and 160: conduct. 756 Although it has consis
Page 161 and 162: liable to pay a sum of money which
Page 163 and 164: 1.224 The second difference is that
Page 165 and 166: award if they succeed in persuading
Page 167 and 168: approaches. 786 132, 787 Although i
Page 169 and 170: ... [c]ontracts should only be held
Page 171 and 172: (ii) The problems of defining with
Page 173 and 174: the insured wrongdoer’s inability
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Page 177: punitive damages, no enactment shal
Page 181 and 182: common law to hold, if necessary, t
Page 183 and 184: PART VI SUMMARY OF RECOMMENDATIONS
Page 185 and 186: (19) the ‘cause of action’ test
Page 187 and 188: damages shall be permitted for that
Page 189 and 190: MICHAEL SAYERS, Secretary 11 Septem
Page 191 and 192: Nigel Ley Harvey McGregor QC Tim Ow
Page 193 and 194: APPENDIX C Persons and organisation
Page 195 and 196: Steve Hedley John Hodgson L Hoyano
Page 197: 197
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