Aggravated, Exemplary and Restitutionary ... - Law Commission

(19) the ‘cause of action’ test of AB v South West Water Services Ltd should be
abandoned; instead:
(a) punitive damages may be awarded for any tort or equitable wrong;
(Draft Bill, clause 3(3))
in this context an equitable wrong comprises a breach of
fiduciary duty, a breach of confidence, or procuring or
assisting a breach of fiduciary duty; (Draft Bill, clause 15(4))
(b) punitive damages may be awarded for a civil wrong which arises
under an Act (including a tort or an equitable wrong), but only if
such an award would be consistent with the policy of that Act;
(Draft Bill, clause 3(4) and 3(5))
however, punitive damages must not be awarded for breach of contract or
under an undertaking in damages.
(20) punitive damages may be awarded in addition to any other remedy which
the court may decide to award, but may only be awarded if the judge
considers that the other remedies which are available to the court will be
inadequate alone to punish the defendant for his conduct (the ‘if, but only
if’ test); (Draft Bill, clause 3(7) and 3(8))
for these purposes the court may regard deterring the defendant and others
from similar conduct as an object of punishment. (Draft Bill, clause 3(10))
(21) in deciding whether to award punitive damages, the court must have regard
to:
(a) the principle that punitive damages must not usually be awarded if,
at any time before the decision falls to be made, the defendant has
been convicted of an offence involving the conduct concerned;
(Draft Bill, clause 4(1))
when applying this principle a court must ignore section 1C of the
Powers of Criminal Courts Act 1973. (Draft Bill, clause 4(3))
(b) any other sanctions that have been imposed in relation to the
conduct concerned; (Draft Bill, clause 4(2))
(22) in deciding the amount of punitive damages the judge must have regard to
the principles that any award:
(a) must not exceed the minimum needed to punish the defendant for
his conduct; (Draft Bill, clause 5(1)(a))
(b) must be proportionate to the gravity of the defendant’s wrongdoing.
(Draft Bill, clause 5(1)(b))
for these purposes the court may regard deterring the defendant and others
from similar conduct as an object of punishment. (Draft Bill, clause 5(3))
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