Aggravated, Exemplary and Restitutionary ... - Law Commission

that exemplary damages were not awarded for a particular type of wrong before
1964 is not considered a good reason as such for refusing to award them for that
wrong today.
(1) Lord Devlin’s three categories: the categories test
(a) Category 1: oppressive, arbitrary or unconstitutional action by
servants of the government
1.90 In Broome v Cassell 308
it was made clear that ‘servants of the government’ is to be
widely construed. 309
Nevertheless, the tortfeasor must be exercising ‘governmental
power’. In AB v South West Water Services Ltd 310
the defendant was a body set up
under statute to supply water for profit. The Court of Appeal held that the
defendant-body fell outside this category because in conducting its commercial
operations it was not discharging governmental functions, 311
nor was it acting as an
instrument or agent of the government. 312
The Court of Appeal also rejected the
plaintiffs’ argument that, since the defendant was a body through which the
United Kingdom performed its obligations under European Community law, and
as such was an ‘emanation of state’ for the purpose of enforcing Community
directives in national courts, it therefore followed that it was exercising executive
power. 313
Sir Thomas Bingham MR also found it unhelpful to inquire whether the
defendant was a body against whose decisions judicial review was available. 314
1.91 The terms ‘oppressive, arbitrary or unconstitutional’ must be read disjunctively. 315
In Holden v Chief Constable of Lancashire 316
the plaintiff had been wrongfully
arrested and detained for about twenty minutes by a police officer, but there was
no allegation or any finding that the officer had acted oppressively or violently.
The plaintiff appealed against the trial judge’s refusal to leave the question of an
award of exemplary damages to the jury. He sought to argue that every case of
unconstitutional action by a servant of the government necessarily fell within Lord
Devlin’s first category. The Court of Appeal was unhappy with the width of this
formulation. 317
Even so, it accepted that, in at least some cases, unconstitutional
Rev 167, 168, and (1997) 5 Tort L Rev 85, 87. On New Zealand, see S Todd et al, The Law
of Torts in New Zealand (2nd ed, 1997) p 1233; see also A Beck, “Claiming Exemplary
Damages” [December 1996] NZLJ 451. See further paras 5.50-5.53 (tort of negligence)
and 5.54-5.56 (equitable wrongs) below.
308 [1972] AC 1027.
309 [1972] AC 1027, 1077H-1078C, 1088A-B, 1130B-C.
310 [1993] QB 507.
311 [1993] QB 507, 525E-F, per Stuart-Smith LJ.
312 [1993] QB 507, 532A-B, per Sir Thomas Bingham MR.
313 [1993] QB 507, 525H-526A, 531G-H.
314 [1993] QB 507, 531G-H.
315 Huckle v Money (1763) 2 Wils KB 205, 95 ER 768; Broome v Cassell [1972] AC 1027,
1128H, 1134D-E; Holden v Chief Constable of Lancashire [1987] QB 380, 388C-D, 388H.
316 [1987] QB 380.
317 Purchas LJ said (at 385F) that it seemed “an overbroad and simplistic approach”, and Sir
John Arnold P said (at 388H-389A) that he shared those misgivings.
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