Aggravated, Exemplary and Restitutionary ... - Law Commission

... nothing either in the authorities or in logic to justify extending this
principle of public policy so as to deny insurance cover to those whose
sole liability is one which arises vicariously ... 543
1.196 The decision and reasoning of Simon Brown LJ in this case suggest that the key
distinction in the existing law may not be between personal and vicarious liability.
Rather, it may lie between insurance against the personal or vicarious liability of
defendants in circumstances where their conduct would amount to criminal
conduct, and insurance against personal or vicarious liability for conduct not
amounting to criminal conduct.
(5) Exemplary damages must be specifically pleaded
1.197 A claim for exemplary damages:
... must be specifically pleaded together with the facts on which the
party pleading relies. 544
1.198 Accordingly, the plaintiff, and only the plaintiff, must decide to seek an exemplary
damages award; even if it would otherwise be appropriate to award exemplary
damages, a court is not permitted to add one of its own motion.
543 [1996] 3 WLR 493, 502H (emphasis added).
544 RSC, O 18, r 8(3). The County Court Rules (O 6, r 1B) provide that:
Where a plaintiff claims aggravated, exemplary or provisional damages, his
particulars of claim shall contain a statement to that effect and shall state the
facts on which he relies in support of his claim for such damages.
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