Aggravated, Exemplary and Restitutionary ... - Law Commission

Legal Services Act 1990 and Rules of the Supreme Court, Order 59, rule 11(4).
These provisions give the Court of Appeal the power to substitute its own award
(“such sum as appears [to it] to be proper”) for that of the jury, where it considers
that the jury’s award was “excessive”.
1.172 These powers extend to both compensatory and exemplary damages awards; they
also apply irrespective of the cause of action which founds the jury award. Thus in
Rantzen v MGN Ltd 484
the Court of Appeal exercised this power to replace a jury
award for defamation of £250,000 with an award of £110,000. In John v MGN
Ltd 485
it substituted an exemplary damages award for defamation of £275,000 with
an award of £50,000. And in Thompson v MPC 486
an exemplary damages award of
£15,000 was substituted for an award of £200,000 made in respect of false
imprisonment and assault. 487
1.173 It is also apparent after Thompson v MPC 488
that the court’s powers to intervene
and substitute a damages award are to be given a uniform interpretation “across
the board” - that is, irrespective of the cause of action in question. 489
This means
that the very liberal interpretation which the powers were given in the context of
the tort of defamation in Rantzen v MGN Ltd 490
applies equally to, for example,
false imprisonment and malicious prosecution. 491
And this is so even though the
principal justification for a liberal interpretation of section 8, and so for closer
scrutiny of large awards, was one which has relevance to defamation actions only:
that is, the need to have regard for the right to freedom of expression. 492
In future,
therefore, the question for an appellate court appears to be whether the award was one
which a “reasonable jury” would have thought necessary to punish the defendant and
to deter him and others. 493
own award. The punishment must then be decided by another jury and if they
too award heavy punishment the court is virtually powerless.
484 [1994] QB 670.
485 [1997] QB 586.
486 [1997] 3 WLR 403.
487 The original award in the case of Mr Hsu comprised £20,000 compensatory damages and
£200,000 exemplary damages. The Court of Appeal did not interfere with the award of
compensatory damages, but it did substitute an award of £15,000 exemplary damages for
the award of £200,000.
488 [1997] 3 WLR 403.
489 Lord Woolf (at 413B) said that once section 8 of the Courts and Legal Services Act 1990
had been given an interpretation for the purposes of one category of cases, that
interpretation had to apply across the board, for:
[i]t is difficult to see how the same words can have different meanings depending
upon the type of action to which they are being applied.
490 [1994] QB 670. See paras 4.61-4.64 above.
491 See Thompson v MPC [1997] 3 WLR 403.
492 See generally paras 4.61-4.67 above, and in particular 4.64.
493 This can be inferred from Rantzen v MGN Ltd [1994] QB 670, 692H, in which Neill LJ
stated that, the barrier against intervention in jury damages assessments by appellate courts
having been lowered, the ‘test’ (of when such intervention was permitted) became:
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