Aggravated, Exemplary and Restitutionary ... - Law Commission

damages shall be permitted for that conduct by any ‘multiple plaintiff’.
(Draft Bill, clause 7(4))
(32) if the court intends to award punitive damages to two or more multiple
plaintiffs in the same proceedings, the aggregate amount awarded must be
such that, while it may properly take account of the fact that the defendant
has deliberately and outrageously disregarded the rights of more than one
person, it does not punish the defendant excessively for his conduct. (Draft
Bill, clause 7(3))
(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))
(34) ‘several liability’, rather than joint or joint and several liability, should apply
to punitive damages (subject to recommendation (35) below); (Draft Bill,
clause 8(1))
(35) recommendation (34) (‘several liability’, rather than joint or joint and
several liability shall apply to punitive damages) is without prejudice to:
(a) our recommendation that vicarious liability to pay punitive damages
should be retained; (Draft Bill, clause 8(2)(a))
(b) the liability of a partner for the wrongs of his co-partner. (Draft
Bill, clause 8(2)(b))
(36) our draft Bill should ensure that the right to recover contribution laid down
in section 1 of the Civil Liability (Contribution) Act shall not extend to a
liability to pay punitive damages that is ‘several’. (Draft Bill, clause 8(3))
(37) our draft Bill should clarify that a person may be vicariously liable to pay
punitive damages in respect of another’s conduct. (Draft Bill, clause 11(1))
(38) our draft Bill should not define the circumstances in which one person may
be vicariously liable for the wrongs of another; instead, it should assume
the boundaries of the concept of vicarious liability as it exists at common
law, or by statute, for the particular tort, equitable wrong or statutory
wrong in question. (Draft Bill, clause 11(1) and 11(2))
(39) subject only to recommendation (40), the sum of punitive damages which
a person is vicariously liable to pay for the wrong of another should be that
which that other would be liable to pay, and should be determined on that
basis. (Draft Bill, clause 11(2))
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