Aggravated, Exemplary and Restitutionary ... - Law Commission

claims fail the cause of action test. 417
In Ministry of Defence v Meredith 418
the
Employment Appeal Tribunal rejected the argument that exemplary damages
nonetheless had to be available in this context as a matter of Community law. The
decision of the European Court of Justice in Marshall v Southampton and South
West Hampshire Health Authority (No 2) 419
that any “sanction” for unlawful
discrimination had to have a “real deterrent effect” was held to require no more
than that where (as in this country) a Member State had chosen to remedy
unlawful discrimination by the award of compensation, that compensation had to
be “full”. 420
Nor were exemplary damages required by the principle of nondiscrimination
or comparability, as they are not available for the ‘comparable’
domestic cause of action: the statutory tort of sex discrimination under the Sex
Discrimination Act 1975. 421
2. ASSESSMENT
1.140 The assessment of exemplary damages awards is essentially indeterminate and has
also often been criticised for ‘unpredictability’ and virtual ‘uncontrollability’. 422
One reason for the indeterminacy is the very large number of factors that are
considered relevant to assessment, as well as the inherent subjectivity of some of
those factors. Assessment requires a court to determine the culpability or
punishment-worthiness of the defendant’s conduct, and according to Lord Devlin
in Rookes v Barnard,
[e]verything which aggravates or mitigates the defendant’s conduct is
relevant. 423
1.141 Another, and probably more important reason for the indeterminacy, is the fact
that exemplary damages awards are commonly assessed by juries. The reason is
that some of the principal torts for which exemplary damages are available are
those for which trial by jury is generally available under section 69(1) of the
Supreme Court Act 1981: false imprisonment, malicious prosecution and
defamation. Even a ‘best’ view of jury assessment would point to the fact that jury
awards are unreasoned, that, in the past, the extent of guidance which trial judges
have been allowed to give has been very limited, and also that the extent of ex post
facto appellate scrutiny has been sparing. And even judges who apparently favour
jury assessment have been worried by the inconsistent amounts of exemplary
damages awarded by different juries. Thus in Thompson v MPC Lord Woolf MR
observed that:
417 See para 4.25 above.
418 [1995] IRLR 539 (EAT).
419 C-271/91 Marshall v Southampton and South West Hampshire Health Authority (No 2) [1994]
QB 126 (ECJ).
420 [1995] IRLR 539, 541, paras 18-19. See also Ministry of Defence v Cannock [1994] IRLR
509, 524, para 144.
421 [1995] IRLR 539, 542, para 22.
422 See, eg, Broome v Cassell [1972] AC 1027, 1087D-F, per Lord Reid; P Birks, Civil Wrongs: A
New World (Butterworth Lectures 1990-91) pp 79-82.
423 [1964] AC 1129, 1228.
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