Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
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“compensation”. 621<br />
But section 65(1)(b) provides that the sum should be the<br />
same as ‘any damages’ which could be awarded for discrimination outside the<br />
employment field. If damages awarded for discrimination outside the employment<br />
field can include punitive damages (as we think), then despite the terminology of<br />
compensation, the pecuniary award under section 65(1)(b) should also be capable<br />
of including a sum by way of punitive damages. 622<br />
Indeed, to refuse to award<br />
punitive damages under section 65, whilst awarding them under section 66, would<br />
create an unjustified <strong>and</strong> anomalous distinction between English law’s protection<br />
of individuals from unlawful discrimination within <strong>and</strong> outside the employment<br />
field. Section 65(1)(b) provides no sound basis for that distinction. 623<br />
And until<br />
English law ruled out exemplary damages for all cases of unlawful discrimination,<br />
English courts had awarded exemplary damages without distinction between<br />
claims arising within <strong>and</strong> outside the employment field. 624<br />
(iv) The problem of ‘European Community law wrongs’ 625<br />
1.66 The question of how English law analyses a breach of European Community law<br />
which gives rise to an action for damages against an individual or the State (for<br />
breach of a ‘directly effective’ provision of Community law, or under the principles<br />
of Member State liability) is a difficult one. It seems that the claim to damages<br />
will be treated as based on a tort, <strong>and</strong> in particular, the tort of breach of statutory<br />
duty, with the statutory duty in question arising by virtue of the European<br />
Communities Act 1972. 626<br />
1.67 Applying that analysis, our recommendations would mean that such breaches of<br />
Community law could trigger an award of punitive damages if the courts took the<br />
621 Until a recent statutory amendment, necessitated by the ECJ’s ruling in C-271/91 Marshall<br />
v Southampton <strong>and</strong> South West Hampshire Health Authority (No 2) [1994] QB 126 (ECJ), the<br />
sum payable as compensation was also subjected to a statutory limit.<br />
622 In this particular context “compensation” seems to be used in a non-technical sense, to<br />
refer to a pecuniary remedy received by the victim of the unlawful discrimination. Cf<br />
Stuart-Smith LJ in AB v South West Water Services Ltd [1993] QB 507, 522D-E.<br />
623 A fortiori now that claims to compensation for unlawful discrimination in the employment<br />
field are no longer subject to a statutory limit.<br />
624 See para 4.25 above.<br />
625 We do not discuss in this paper the question of whether punitive damages might be<br />
available for breach of the European Convention on Human Rights, if this were to be<br />
incorporated into national law. The Government has recently announced its intention to<br />
incorporate the Convention. Under the present law it would seem that exemplary damages<br />
would be unavailable because of the cause of action test. If our recommendations were<br />
implemented, the availability of punitive damages would presumably turn on the<br />
consistency test.<br />
626 English judicial statements that an action for damages for breach of directly effective<br />
provisions of Community law constitutes, in English law, an action for breach of statutory<br />
duty, include those of Lord Diplock in Garden Cottages Foods Ltd v Milk Marketing Board<br />
[1984] AC 130. And recently, in R v Secretary of State for Transport, ex p Factortame Ltd (No<br />
5), The Times 11 September 1997 (QB, Divisional Court) the Divisional Court<br />
characterised the action for damages against a Member State, under the conditions<br />
formulated by the European Court of Justice in C-6 & 9/90 Francovich & Bonifaci v Italy<br />
[1991] ECR I-5357 <strong>and</strong> C-46 & 48/93 Brasserie du Pecheur SA v Germany; R v Secretary of<br />
State for Transport, ex p Factortame Ltd [1996] QB 404 (ECJ).<br />
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