Aggravated, Exemplary and Restitutionary ... - Law Commission

• the existence of multiple plaintiffs
• the plaintiff’s conduct
• the defendant’s good faith
1.144 Moreover, in a succession of recent cases, the Court of Appeal has departed from
past practice, by permitting increasingly detailed guidance to be offered to juries
by trial judges as to how they should reach an appropriate sum, and by exercising a
closer degree of ex post facto control over ‘excessive’ jury awards. 426
These crucial
developments have been designed to meet understandable concerns about
uncontrolled, unpredictable, inconsistent and potentially excessive jury awards.
(1) Article 10 of the European Convention on Human Rights
1.145 Article 10(1) of the European Convention for the Protection of Human Rights and
Fundamental Freedoms states that:
Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart
information and ideas without public authority and regardless of
frontiers.
Article 10(2) states that:
The exercise of these freedoms ... may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society ... for the protection of the
reputation or rights of others ...
1.146 At present, 427
the European Convention on Human Rights is not itself part of
English domestic law; English courts thus have no power to enforce Convention
rights directly. Nevertheless, in Rantzen v Mirror Group Newspapers Ltd 428
the
Court of Appeal recognised that:
[w]here freedom of expression is at stake ... recent authorities lend
support to the proposition that article 10 has a wider role 429
and can
properly be regarded as an articulation of some of the principles
underlying the common law. 430
426 The most important of these are: Rantzen v MGN Ltd [1994] QB 670; John v MGN Ltd
[1997] QB 586; Thompson v MPC [1997] 3 WLR 403.
427 The Government has signalled its intention to incorporate the Convention into domestic
law.
428 [1994] QB 670.
429 It has long been accepted that the Convention could be used, in particular, for the purpose
of resolving ambiguity in English primary or subordinate legislation, and that where there is
an ambiguity the courts will presume that Parliament intended to legislate in conformity
with the Convention and not in conflict with it.
430 [1994] QB 670, 691C-D, per Neill LJ, referring to, inter alia: AG v Guardian Newspapers
Ltd (No 2) [1990] 1 AC 109, 283, per Lord Goff; Derbyshire County Council v Times
Newspapers Ltd [1993] AC 534, 551, per Lord Keith, agreeing with Lord Goff in AG v
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