Aggravated, Exemplary and Restitutionary ... - Law Commission

If the court awards exemplary damages, it will be for the criminal courts to
determine the relevance of this in the event that the defendant is subsequently
convicted of a criminal offence for the same conduct.
(ii) The relevance of disciplinary procedures or proceedings
1.128 Criminal and civil proceedings are not the only possible responses to wrongdoing;
an obvious and important alternative is disciplinary proceedings. These may be
conducted by the organisation by which the defendant is employed, or by the
professional organisation of which the defendant is a member. How far does the
fact that disciplinary proceedings have, or may be, brought affect a claim to
exemplary damages?
1.129 In the recent case of Thompson v MPC 392
it was argued that the jury should be
invited to take account of disciplinary procedures which are available against police
officers, when considering whether the case is one which warrants the award of
exemplary damages. 393
The Court of Appeal suggested that this would only be
appropriate if two conditions were met:
... where there is clear evidence that such proceedings are intended to
be taken in the event of liability being established and that there is at
least a strong possibility of the proceedings succeeding. 394
But even if, in these circumstances, the prospect of disciplinary proceedings is a
consideration which may persuade a court to refuse to make any award of
exemplary damages, whether it should be so persuaded should depend upon, in
particular, the nature and efficacy of the disciplinary proceedings. 395
1.130 No reported English case has considered the relevance of disciplinary proceedings
which have been brought successfully prior to civil proceedings for exemplary
damages. It is therefore unclear whether an English court would hold this to be an
automatic and absolute bar to a subsequent award of exemplary damages for the
same conduct, or would examine the nature and adequacy of the disciplinary
sanction (if any) in order to decide whether, and to what extent, an additional
award of exemplary damages is necessary to punish the defendant.
(d) Multiple plaintiffs
1.131 The existence of a class of plaintiffs may provide a reason for refusing to make any
exemplary award at all. In AB v South West Water Services Ltd 396
the Court of
Appeal considered that the large number of plaintiffs affected by the nuisance was
392 [1997] 3 WLR 403.
393 [1997] 3 WLR 403, 418H-419A.
394 [1997] 3 WLR 403, 418H-419A.
395 The disciplinary body may, for example, have very potent sanctions, such as the power to
strike the defendant off the list of persons legally permitted to practise a particular
profession, which, if awarded, would very arguably make an (additional) exemplary
damages award unnecessary or otherwise inappropriate. But it is possible that the sanctions
available and/or awarded could be less potent.
396 [1993] QB 507, 527B-D, 528E-F, 531D-E.
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