Aggravated, Exemplary and Restitutionary ... - Law Commission

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