Aggravated, Exemplary and Restitutionary ... - Law Commission

easons of fairness to defendants: inter alia, ‘excessive’ awards might otherwise
constitute an unjustifiable infringement of the defendant’s civil liberties; 458
they
may constitute a greater punishment than would be likely to be incurred, if the
conduct were criminal; 459
and they are a punishment imposed without the
safeguards which the criminal law affords an offender. 460
1.158 But there are other reasons for ‘restraint’, which have a rather different focus. One
of these is that the plaintiff may receive ‘too much’. Exemplary damages awards
are a ‘windfall’ to a plaintiff, and, it would appear from the Court of Appeal’s
decision in Thompson v MPC, 461
that a separate reason 462
for ‘restraint’ is the
concern to avoid giving a plaintiff too excessive a windfall. This consideration was
stated as part of the guidance which the Court of Appeal formulated for use in
jury-tried claims to exemplary damages; 463
however, it should be no less relevant
where a judge, rather than a jury, decides what award is appropriate.
1.159 In Thompson v MPC 464
the ‘windfall’ concern was expressed alongside another: that
an award may be a windfall to the plaintiff at the general public’s expense. Where a
public service-provider is liable to pay exemplary damages out of its own funds,
and the liability is not met by insurers, the money so paid will not be available to
finance the publicly beneficial activities of that body. Thompson v MPC indicates
that this is a reason for exercising restraint when determining the liability of, for
example, a police authority to pay exemplary damages, in the event that the claim
is not met by insurers. Thus a jury should be told that, inter alia:
... an award of exemplary damages is in effect a windfall for the
plaintiff and, where damages will be payable out of police funds, the
sum awarded may not be available to be expended by the police in a
way which would benefit the public (this guidance would not be
appropriate if the claim were to be met by insurers); 465
1.160 This direction embodies a reason for ‘restraint’ which should also be borne in
mind by a judge, when he alone determines a defendant’s liability to exemplary
damages.
456 [1997] QB 586, 619F-G, referred to at para 4.66 above.
457 [1964] AC 1129, 1228, referred to at para 4.68 above.
458 John v MGN Ltd [1997] QB 586, 619F-G; Rookes v Barnard [1964] AC 1129, 1227, per
Lord Devlin.
459 Rookes v Barnard [1964] AC 1129, 1227, per Lord Devlin.
460 Rookes v Barnard [1964] AC 1129, 1227, per Lord Devlin.
461 [1997] 3 WLR 403.
462 The guidance given in Thompson referred to the ‘windfall’ and ‘resources for public
services’ concerns together. But the ‘windfall’ concern should arguably be a reason for
restraint where it alone applies - in particular, where the defendant has no role in delivering
services to the public.
463 [1997] 3 WLR 403, 417H.
464 [1997] 3 WLR 403.
465 [1997] 3 WLR 403, 417H (emphasis added).
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