Aggravated, Exemplary and Restitutionary ... - Law Commission

1.107 Consistently with the apparent rarity of clear statutory authorisation of exemplary
damages, it is of interest that, when the Protection from Eviction Act 1977 was
amended by the Housing Act 1988, a new regime of restitutionary rather than
exemplary damages was introduced in order to supplement the inadequate regime
of compensatory damages then available to an unlawfully evicted tenant. 355
(2) The cause of action test
(a) Wrongs which satisfy the cause of action test
1.108 Wrongs satisfying the cause of action test - because they are wrongs for which
exemplary damages had been awarded before Rookes v Barnard - are malicious
prosecution, false imprisonment, assault and battery, defamation, trespass to land
or to goods, private nuisance, and tortious interference with business. 356
Where
committed by servants of government, the torts of malicious prosecution, and
assault and battery, have fallen within category 1. Where committed for gain, the
torts of defamation, trespass to land or goods, private nuisance, and tortious
interference with business, have fallen within category 2.
(b) Wrongs which fail the cause of action test
1.109 Wrongs failing the cause of action test - because they are wrongs for which there is
no pre-Rookes v Barnard authority for an award of exemplary damages - include
the tort of negligence, 357
public nuisance, 358
deceit, 359
patent infringement, 360
damages’ was only fully developed in Rookes v Barnard [1964] AC 1129, there is evidence
that the Committee meant what it said: the title of the section in which additional damages
are considered is “Extent of Penalties”.
354 Section 17(3) was limited by the condition that additional damages could not be awarded
unless “effective relief” would not otherwise be available to the plaintiff. Section 97(2) does
not limit the availability of additional damages in this way.
355 See para 3.11 above.
356 See Aggravated, Exemplary and Restitutionary Damages (1993) Consultation Paper No
132, paras 3.57-3.64.
357 See AB v South West Water Services Ltd [1993] QB 507, 523C-D, 528E-F, 530H. An
unresolved question is whether torts which satisfy the cause of action test, but which are
committed merely negligently, can give rise to exemplary damages: cf Barbara v Home
Office 134 NLJ 888.
358 This was one of the torts on which the claim to exemplary damages in AB v South West
Water Services Ltd was based; the claim was struck out ([1993] QB 507, 523H, 528E-F,
531B). However, the Court of Appeal gave additional reasons why public nuisance ought
not to give rise to exemplary damages: especially at 531B-E, per Sir Thomas Bingham MR.
359 Broome v Cassell [1972] AC 1027, 1076C-F (per Lord Hailsham), 1130H-1131A (per Lord
Diplock).
360 Catnic Components Ltd v Hill & Smith Ltd [1983] FSR 512, 541.
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