Aggravated, Exemplary and Restitutionary ... - Law Commission

Thompson v MPC achieves its aims, that development will be much less likely. The
reason is that Thompson-type guidance is designed to reduce the number of jury
awards which are appealed against, by avoiding the risk of ‘excessive’ jury awards.
And if the number of appeals decline, so should the number of awards which are
‘substituted’ on appeal. Lord Woolf MR observed:
To not provide juries with sufficient guidance to enable them to
approach damages on similar lines to those which this court will adopt
will mean that the number of occasions this court will be called on to
intervene will be undesirably frequent. This will be disadvantageous to
the parties because it will result in increased costs and uncertainty. It
will also have adverse consequences for the reputation of the jury
system. It could be instrumental in bringing about its demise. 515
3. MISCELLANEOUS ISSUES
(1) Standard of proof
1.183 In John v MGN Ltd 516
the Court of Appeal stated that the standard of proof which
applies to claims to exemplary damages is the civil and not the criminal
standard. 517
Prima facie the civil standard is a different, lower standard: viz, proof
on the balance of probabilities. However, it has long been apparent that, especially
in cases involving allegations of criminal conduct in civil proceedings, clearer proof
may be required before a court or jury is entitled to find that proof on the balance
of probabilities has been established. 518
This might be regarded as an inherent and
inevitable flexibility which exists whatever standard of proof is formally chosen.
Cross & Tapper on Evidence states:
... there are no more than two standards of proof recognised by the
law, though allowance must be made for the fact that some
occurrences are antecedently more probable than others, and the
consequences of some decisions are more serious than others ... For
these reasons prosecutors on the more serious criminal charges or
those carrying graver consequences, and plaintiffs in some civil cases,
have higher hurdles to surmount than when they are making less
serious allegations or those with more trivial consequences. 519
1.184 In John v MGN Ltd Sir Thomas Bingham MR appeared to accept this sort of
analysis:
But a jury should in our judgment be told that as the charge is grave,
so should the proof be clear. An inference of reprehensible conduct
and cynical calculation of mercenary advantage should not be lightly
since the power had come into force, there had been only three cases in which the Court of
Appeal had itself selected the appropriate level of award.
515 [1997] 3 WLR 403, 414G-H.
516 [1997] QB 586.
517 [1997] QB 586, 619B.
518 See, in particular, Hornal v Neuberger Products Ltd [1957] 1 QB 247 (CA) and, in a different
context, Khawaja v Secretary of State for the Home Department [1984] AC 74.
519 Cross & Tapper on Evidence (8th ed, 1995) p 159.
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