Aggravated, Exemplary and Restitutionary ... - Law Commission

1.24 It follows from the view that civil punishment is distinctive in these ways that the
objections outlined in para 5.21 above fall away as necessary objections. It is always
an open question, which has to be addressed in respect of each ‘objection’ in turn,
whether awards of exemplary damages should be governed by the same rules as
exist in the criminal law.
(c) Conclusion
1.25 After much deliberation we have concluded that the principled case for retaining
exemplary damages is to be preferred to the principled case for abolition. In other
words, we believe that civil punishment can be adequately distinguished from
criminal punishment, and has an important and distinctive role to play. At a
deeper level the different approaches to the central issue of principle seem to
reflect differences in the precision with which one wishes to divide different
branches and functions of the law. The argument of principle for abolishing
exemplary damages seeks to draw a bright line between the civil law and criminal
law. The argument of principle for retaining exemplary damages is content rather
with a ‘fuzzy’ line, with a range of punishments from civil punishment, through
criminal fines, to imprisonment.
1.26 We should emphasise, however, that we have not found this central issue of
principle easy to resolve and we regard the arguments as finely balanced. In the
circumstances we think it most important that our preference for the retention of
exemplary damages is supported by arguments of general policy, to which we now
turn.
(2) General policy arguments
(a) Arguments of policy for retaining exemplary damages
1.27 We regard the following general policy arguments to be the central ones in favour
of the retention of exemplary damages:
(1) If civil punishment has some deterrent effect, and we consider that it must
have, the abolition of exemplary damages would remove one means of
protecting potential victims of wrongdoing.
(2) While aggravated and restitutionary damages may go a long way towards
properly protecting plaintiffs, lacunae will be left if one abolishes exemplary
damages. The most blatant examples will occur where one cannot link profits
to a particular wrong, so that restitutionary damages will not be available: viz,
where a defendant deliberately committed a wrong in order to make money,
yet one cannot identify the particular profit that has been made from the
wrong.
(3) The criminal law and criminal process do not work perfectly; civil punishment
can go some way towards making up for their defects. This is so even though,
in an ideal world, such defects would be removed by reform of the criminal law
and criminal process themselves. General ‘defects’ include the following: that
the state does not have sufficient resources to apprehend all criminals; that the
state may not wish to prosecute, or to continue prosecutions which it has
begun; that the substantive scope of the criminal law may not extend to all
wrongs which merit punishment. At a more specific level, it may be thought
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