Aggravated, Exemplary and Restitutionary ... - Law Commission

practitioners and academics) considered that rationalisation entailed a principled,
statutory expansion of the availability of exemplary damages. 28
1.15 In favouring retention and expansion, rather than abolition, we have been most
influenced by two considerations. First, there is a practical need for exemplary
damages. Our attention was drawn by large numbers of consultees to what are, or
would be, ‘gaps’ in the law - areas in which other remedies or sanctions are
inadequate, in practice, to punish and to deter seriously wrongful behaviour.
These ranged from providing sanctions against abuses of power by the police, to
deterring unlawfully discriminatory conduct by employers or persons generally, to
discouraging deliberate violations of health and safety legislation. In general terms,
one can regard the gaps as flowing from the fact that the criminal law and criminal
process do not work perfectly (and inevitably so). Substantial numbers of
consultees considered that exemplary damages do or could have a useful role to
play in filling these gaps. They fulfil a practical need. We agree.
1.16 Secondly, we believe that, provided exemplary damages are a ‘last resort’ remedy
which are subject to significant limitations, and provided that the availability and
assessment of exemplary damages are determined by judges and not juries,
exemplary damages are a legitimate way of meeting that practical need.
1.17 In formulating our recommendations, our guiding aims have been five-fold. First,
exemplary damages should be an exceptional remedy, rarely-awarded and reserved
for the most reprehensible examples of civil wrongdoing which would otherwise go
unpunished by the law. Secondly, their availability (and assessment) must be
placed on a clear, principled basis. Thirdly, although flexibility is necessary,
unnecessary uncertainty as to the availability and assessment of the remedy must
be avoided. Fourthly, defendants must not be unfairly prejudiced. Fifthly, the
impact on the administration and funding of civil justice should not be adverse.
1.18 We believe that, if legislative reform is guided by those aims, the remedy of
exemplary damages can emerge as a useful and legitimate, rather than anomalous,
civil remedy, which may be expected to command support from all but the
strongest proponents of abolition.
(b) Our recommendations for reform of exemplary damages
1.19 Our central recommendations are that the ‘cause of action’ and ‘categories’ tests
should be replaced with a general principled test of availability, but that that
expansion of liability should be subject to major limitations.
1.20 A judge (and never a jury) 29
should award exemplary damages (or as we prefer to
call them, ‘punitive damages’) 30
for any tort or equitable wrong, as well as for
28 Just under one half (49%) of those responding to the Supplementary Consultation Paper
(1995) favoured a principled expansion, broadly along the lines which we recommend in
Part V, in preference to the two other alternatives of total abolition and partial retention.
Just under a quarter (23%) supported partial retention; 72% were therefore in favour of
retaining exemplary damages in some form. See paras 5.13-5.15 below.
29 See paras 5.81-5.98, recommendation (17), and draft Bill, clause 2, below.
30 See para 5.39 and recommendation (15) below.
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