Aggravated, Exemplary and Restitutionary ... - Law Commission

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it. Where, however, a cause of action accrues after commencement, the expanded remedy of ‘punitive damages’, as defined by our Act, will apply. 182
PART VI SUMMARY OF RECOMMENDATIONS Aggravated Damages 1.1 We recommend that: (1) legislation should provide that so-called ‘aggravated damages’ may only be awarded to compensate a person for his or her mental distress; they must not be intended to punish the defendant for his conduct. (Draft Bill, clause 13) (2) wherever possible the label ‘damages for mental distress’ should be used instead of the misleading phrase ‘aggravated damages’. (Draft Bill, clause 13) (3) recommendations (1) and (2) are not intended to restrict the circumstances in which damages for mental distress are recoverable other than as ‘aggravated damages’ (for example, compensation for pain and suffering in personal injury cases or contractual damages for a ruined holiday). Restitutionary Damages 1.2 We recommend that: (4) no attempt should be made to state comprehensively in legislation the situations in which torts should trigger restitution; subject to recommendation (7), the development of the law of restitution for torts should be left to common law development. (5) no attempt should be made to state comprehensively in legislation the situations in which equitable wrongs should trigger restitution; subject to recommendation (7), the development of the law of restitution for equitable wrongs should be left to ‘common law’ development. (6) no legislative provision should deal with whether (and if so, when) restitutionary damages may be awarded for breach of contract; the development of the law of restitution for breach of contract should be left to common law development. (7) legislation should provide that restitutionary damages may be awarded where: (a) the defendant has committed: (i) a tort or equitable wrong, or (ii) a civil wrong (including a tort or an equitable wrong) which arises under an Act, and an award of restitutionary damages would be consistent with the policy of that Act, and 183
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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
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(2) the relationship between (on th
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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 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
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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
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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
Page 175 and 176: award to be covered by insurance, t
Page 177 and 178: punitive damages, no enactment shal
Page 179 and 180: one case, 831 and arguably done so
Page 181: common law to hold, if necessary, t
Page 185 and 186: (19) the ‘cause of action’ test
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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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Aggravated, Exemplary and Restitutionary ... - Law Commission

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