Aggravated, Exemplary and Restitutionary ... - Law Commission

statutory wrongs if an award would be consistent with the policy of the statute
under which the wrong arises. 31
However, an award should be made only if the
defendant’s conduct showed a deliberate and outrageous disregard of the plaintiff’s
rights 32
and the other remedies awarded would be inadequate to punish the
defendant for his conduct. 33
Furthermore, no award should usually be made,
where the defendant has already been convicted of an offence involving the
conduct which founds the claim to punitive damages. 34
And the court should be
required to take into account any other sanctions which may have been imposed,
when deciding whether punitive damages are necessary, and therefore available. 35
The court will retain a ‘safety-valve’ discretion to refuse punitive damages, where
an award would otherwise be available under the above tests, if some exceptional
factor exists which makes it proper in the circumstances to refuse an award. 36
1.21 The decision about how much to award as punitive damages, where they have
been held to be available, should also always be for a judge, never a jury. 37
An
award should not exceed the minimum necessary to punish the defendant for his
conduct, and should be proportionate to the gravity of his wrongdoing. 38
The
judge should also be guided by a non-exhaustive statutory list of relevant factors. 39
We anticipate that a body of precedent, judicial tariffs and/or guideline judgments
would offer further guidance, in time. 40
If a defendant would not be able to pay an
award which is assessed in this way without undue hardship, then the court should
select a lower, appropriate sum. 41
1.22 Apart from these central recommendations, we make a number of additional ones.
A claim to punitive damages should be specifically pleaded. 42
The standard of
proof should remain the civil standard of proof on the balance of probabilities. 43
Liability to punitive damages should, in general, be ‘several’ only. 44
However,
vicarious liability should apply 45
and insurance should be permitted. 46
A claim for
31 See paras 5.49-5.65, recommendation (19), and draft Bill, clause 3(3)-3(5), below.
32 See paras 5.46-5.48, recommendation (18), and draft Bill, clause 3(6), below.
33 See paras 5.99-5.102, recommendation (20), and draft Bill, clause 3(7), below.
34 See paras 5.103-5.115, recommendation (21)(a), and draft Bill, clause 4(1), below.
35 See paras 5.116-5.117, recommendation (21)(b), and draft Bill, clause 4(2), below.
36 See paras 5.118-5.119 below.
37 See paras 5.81-5.98, recommendation (17), and draft Bill, clause 2, below.
38 See paras 5.120-5.122, recommendations (22)(a) and (22)(b), and draft Bill, clause 5(1)(a)
and 5(1)(b), below.
39 See paras 5.123-5.128, recommendation (23), and draft Bill, clause 5(2), below.
40 See, in particular, our reasoning at paras 5.91-5.98 below; see also paras 4.86-4.98 below.
41 See paras 5.135-5.141, recommendations (26)-(28), and draft Bill, clause 6, below.
42 See paras 5.133-5.134, recommendation (25), and draft Bill, clause 3(2), below.
43 See paras 5.231-5.233, recommendation (41), and draft Bill, clause 10, below.
44 See paras 5.186-5.203, recommendation (34), and draft Bill, clause 8(1), below. Cf paras
5.204-5.205.
45 See paras 5.209-5.230, recommendations (37)-(40), and draft Bill, clauses 8(2)(a) and 11
below.
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