Aggravated, Exemplary and Restitutionary ... - Law Commission

3. THE CASE FOR AND AGAINST EXEMPLARY DAMAGES
(1) The central issue of principle
1.16 In articulating a principled answer to the question whether exemplary damages
should be retained or abolished, we consider that one fundamental issue has to be
resolved: do exemplary damages confuse the civil and criminal functions of the
law? The Consultation Paper stated:
The range of views on the question of the availability of exemplary
damages is at heart a product of radically different perceptions of the
role of the law of civil wrongs, in particular tort law, and of its
relationship to criminal proceedings. The opposing views are best
summarised in the speeches of Lord Reid and Lord Wilberforce in
Broome v Cassell ... It will almost certainly be impossible to achieve a
consensus on the acceptability of exemplary damages in the absence of
agreement as to which of these perceptions is correct. 556
1.17 Lord Reid in Broome v Cassell 557
stated that he regarded exemplary damages as “highly
anomalous” and continued:
It is confusing the function of the civil law, which is to compensate,
with the function of the criminal law, which is to inflict deterrent and
punitive penalties. Some objection has been taken to the use of the
word ‘fine’ to denote the amount by which punitive or exemplary
damages exceed anything justly due to the plaintiffs. In my view the
word ‘fine’ is an entirely accurate description of the part of any award
which goes beyond anything justly due to the plaintiff and is purely
punitive. 558
1.18 On the other hand, Lord Wilberforce thought that it could not be assumed
... that there is something inappropriate or illogical or anomalous ... in
including a punitive element in civil damages, or, conversely, that the
criminal law, rather than the civil law, is in these cases the better
instrument for conveying social disapproval, or for redressing a wrong
to the social fabric, or that damages in any case can be broken down
into the two separate elements. As a matter of practice English law has
not committed itself to any of these theories ... 559
1.19 We now need to consider in more detail this central issue of principle.
(a) The principled case for abolishing exemplary damages
1.20 The principled case for abolition is that, given the existence of the criminal law, the
raison d’être of which is punishment, it confuses and complicates matters to punish civil
wrongdoers. Wherever punishment is warranted, it ought to be pursued through the
556 Aggravated, Exemplary and Restitutionary Damages (1993) Consultation Paper No 132,
para 5.28.
557 [1972] AC 1027.
558 [1972] AC 1027, 1086C-D.
559 [1972] AC 1027, 1114C-D.
97