Aggravated, Exemplary and Restitutionary ... - Law Commission

(b) Guidance for juries
1.174 The second set of developments concerns the guidance of juries by trial judges.
This has, in the past, been “extremely limited”. 494
But there have been extensive
developments in recent years. Guidance has increasingly been permitted, in a
variety of forms, in relation to compensatory damages (for non-pecuniary loss) as
well as exemplary damages:
• guideline compensatory damages ‘brackets’, which are consistent with
judicial ‘brackets’ for pain, suffering and loss of amenity in personal
injury cases
• guideline exemplary damages ‘brackets’
• ‘substitute’ awards made by the Court of Appeal in previous cases
(i) ‘Brackets’ & ‘personal injuries comparisons’: assessing compensatory damages
1.175 In John v MGN Ltd 495
the Court of Appeal for the first time permitted trial judges
to refer juries to ‘comparable’ compensatory awards for pain, suffering and loss of
amenity in personal injury cases, when assessing compensation for defamation. 496
Counsel in their submissions, and the trial judge in his directions to the jury, were
also permitted to suggest appropriate figures (or brackets) to the jury.
1.176 Thompson v MPC 497
has subsequently applied an analogous approach to the torts
of false imprisonment and malicious prosecution. A trial judge should suggest an
‘appropriate bracket’ to the jury, which includes an approximate ‘basic’ figure, as
well as an approximate ‘ceiling’. 498
This approach differs in two key respects from
that advocated for defamation actions in John v MGN Ltd. 499
First, Thompson v
MPC decides that the appropriate ‘bracket’ should be decided by the judge, after
hearing submissions on the matter from counsel in the absence of the jury; only
once the judge has determined the appropriate ‘bracket’ should it be put before
the jury. 500
In contrast, John v MGN Ltd permits both counsel and the trial judge
each to suggest appropriate figures. 501
Secondly, in Thompson v MPC Lord Woolf
Could a reasonable jury have thought that this award was necessary to
compensate the plaintiff and to re-establish his reputation?
See also para 4.64 above.
494 Thompson v MPC [1997] 3 WLR 403, 409E, per Lord Woolf MR.
495 [1997] QB 586.
496 This was one of our provisional recommendations in Damages for Personal Injury: Non-
Pecuniary Loss (1995) Consultation Paper No 140.
497 [1997] 3 WLR 403.
498 [1997] 3 WLR 403, 415H-416H.
499 [1997] QB 586.
500 [1997] 3 WLR 403, 416A-B.
501 [1997] QB 586. In Thompson v MPC [1997] 3 WLR 403, 416A-B, Lord Woolf noted that
this was not what was proposed in the case of a defamation action in John v MGN Ltd
[1997] QB 586, but suggested that submissions by counsel in the absence of the jury are
likely to have advantages, for two reasons:
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