Aggravated, Exemplary and Restitutionary ... - Law Commission

(2) The judge, and not the jury, should determine the availability and quantum
of exemplary damages.
(3) Exemplary damages should be a remedy of ‘last resort’. This means that
even where a defendant has ‘deliberately and outrageously disregarded the
plaintiff’s rights’, a judge should only award exemplary damages if he
considers that any other remedy available is insufficient (alone) to punish
and deter the defendant. It also means that a court should only rarely (if
ever) award exemplary damages where the defendant has already been
convicted of an offence involving the conduct which is alleged to justify the
award, and that a court should not award exemplary damages if any other
sanction which has been imposed on the defendant (for example, in
disciplinary proceedings) is adequate to punish and deter him or her.
“The availability and assessment of awards is too discretionary”
1.31 We recognise that the discretionary element in exemplary awards is substantial.
However, legislation on exemplary damages would have the effect of ‘clarifying’
the law, and this would be further enhanced by case law interpretation. In any
event, an element of discretion is warranted in order to retain the flexibility
necessary to achieve justice and to ensure that the award is tailored to the nature
of the defendant’s conduct and its consequences, and so to the degree of
retribution, deterrence and disapproval which an exemplary award must achieve.
1.32 The risk of excessive uncertainty in the assessment of exemplary damages can be
minimised in several ways:
(1) The allocation of the role of assessment to judges, rather than to juries, can
promote a greater measure of consistency between awards of exemplary
damages. Judicial development of tariffs in respect of compensation for
personal injury, and the promulgation of guideline judgments by the Court
of Appeal within the field of criminal sentencing, are two approaches which
civil courts might follow in order to achieve greater consistency between
exemplary awards.
(2) A non-exhaustive statutory list of factors that ought always to be
considered by the courts, when assessing exemplary damages awards,
should help to minimise any risk of arbitrariness. Such a list should
encourage judges to rationalise the size of such awards rather than leaving
them to select figures in an unreasoned way.
(3) A guiding principle of ‘proportionality of punishment’ should likewise serve
to promote consistency and rationality in the assessment of awards. The
concept inevitably requires an explanation of the connection between the
gravity of wrongdoing and the punishment exacted in respect of it.
“Moderate awards will not be effective deterrents”
1.33 The force of this objection varies according to one’s interpretation of the concept
of ‘moderation’. Two different usages of the term can be found in the present law.
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