Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
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particularly unsatisfactory to rely on the criminal law where it is the state itself -<br />
through its officers - that has committed the crime. Civil punishment may<br />
therefore be particularly useful, even if merely to ensure that justice is seen to<br />
be done, in respect of wrongs by police <strong>and</strong> other officers of the state.<br />
(4) To abolish exemplary damages would be to fly in the face of the traditions of<br />
the common law, for common law judges have long found exemplary damages<br />
to be useful.<br />
(b) Arguments of policy against retaining exemplary damages<br />
1.28 We regard the following policy arguments to be the central ones against the<br />
retention of exemplary damages:<br />
(1) The availability of exemplary damages may encourage litigation: some potential<br />
litigants may be enticed by the availability of large awards to bring ill-founded<br />
claims.<br />
(2) There is concern that the question whether to award exemplary damages, <strong>and</strong><br />
if so, in what amount, depends too much on judicial discretion <strong>and</strong> the<br />
application of ‘subjective’ concepts; outrage, for example, is a subjective idea.<br />
(3) If exemplary damages awards should be moderate, <strong>and</strong> the circumstances<br />
in which they will be awarded should be fairly predictable, they are unlikely<br />
to act as much of a deterrent.<br />
(3) Conclusion<br />
1.29 Our view is that, in contrast to the central policy arguments for retaining<br />
exemplary damages, the central policy arguments against retaining exemplary<br />
damages are unfounded or surmountable:<br />
“Large awards produce incentives to unfounded litigation”<br />
1.30 We do not agree that the availability of exemplary damages significantly increases<br />
unfounded litigation. First, the high cost of litigation, coupled with the prospect of<br />
having to bear the costs of the opposing <strong>and</strong> successful side in any litigation, is<br />
likely in any case to be a significant deterrent to any plaintiffs who are considering<br />
whether to bring unfounded claims. Secondly, plainly ‘bad’ cases - <strong>and</strong> a fortiori<br />
cases whose only motivation is to oppress a particular defendant - can be struck<br />
out by the civil courts (or be otherwise dealt with, for example, by civil liability for<br />
the tort of abuse of process, or liability for costs). Thirdly, a number of limiting<br />
principles or devices already apply, or could be introduced, so as to limit the size<br />
<strong>and</strong> frequency of awards, <strong>and</strong> thereby limit any incentive to bring unfounded<br />
claims. In particular, we consider (<strong>and</strong> will explain in more detail below) 565<br />
that:<br />
(1) <strong>Exemplary</strong> damages awards should continue to be ‘moderate’, meaning the<br />
minimum necessary to achieve the aims of punishment, deterrence <strong>and</strong><br />
disapproval, <strong>and</strong> ‘proportional’ to the gravity of the defendant’s conduct.<br />
565 See paras 5.81-5.98 below (judicial role), 5.99-5.117 below (last resort remedy), <strong>and</strong><br />
5.120-5.122 below (principles of moderation <strong>and</strong> proportionality).<br />
101