Aggravated, Exemplary and Restitutionary ... - Law Commission

(2) Our central recommendations
1.44 We recommend that:
(17) the judge, and not a jury, should determine whether punitive
damages should be awarded, and if so, what their amount should
be. (Draft Bill, clause 2)
(18) punitive damages may only be awarded where in committing a
wrong, or in conduct subsequent to the wrong, the defendant
deliberately and outrageously disregarded the plaintiff’s rights;
(Draft Bill, clause 3(6); for ‘conduct’ see clause 15(3)); and the narrower
‘categories’ test of Rookes v Barnard should be rejected. (Draft Bill,
clause 3(9))
(19) the ‘cause of action’ test of AB v South West Water Services Ltd
should be abandoned; instead:
(a) punitive damages may be awarded for any tort or equitable
wrong; (Draft Bill, clause 3(3))
in this context an equitable wrong comprises a breach
of fiduciary duty, a breach of confidence, or procuring
or assisting a breach of fiduciary duty; (Draft Bill,
clause 15(4))
(b) punitive damages may be awarded for a civil wrong which
arises under an Act (including a tort or an equitable wrong),
but only if such an award would be consistent with the policy
of that Act; (Draft Bill, clause 3(4) and 3(5))
however, punitive damages must not be awarded for breach of
contract or under an undertaking in damages.
(20) punitive damages may be awarded in addition to any other remedy
which the court may decide to award; (Draft Bill, clause 3(8)) but
may only be awarded if the judge considers that the other remedies
which are available to the court will be inadequate alone to punish
the defendant for his conduct (the ‘if, but only if’ test); (Draft Bill,
clause 3(7))
for these purposes the court may regard deterring the defendant
and others from similar conduct as an object of punishment. (Draft
Bill, clause 3(10))
(21) in deciding whether to award punitive damages, the court must
have regard to:
(a) the principle that punitive damages must not usually be
awarded if, at any time before the decision falls to be made,
the defendant has been convicted of an offence involving the
conduct concerned; (Draft Bill, clause 4(1))
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