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pain. 73 He thought that conduct which was offensive, 74 or which was accompanied by malevolence, 75 spite, 76 malice, insolence or arrogance, 77 could lead to recoverable intangible loss. In Broome v Cassell 78 the House of Lords referred to mental distress, 79 injury to feelings, 80 insult, 81 indignity, 82 humiliation 83 and a heightened sense of injury or grievance. 84 Examples of ‘exceptional conduct’ include wrongful eviction of a tenant in circumstances of harassment and abuse, 85 police misconduct, 86 and malicious libel. 87 In Thompson v MPC, 88 Lord Woolf MR gave as examples in cases involving wrongs 89 committed by police officers: ... humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest or the prosecution which shows that they had behaved in a high handed, insulting, malicious or oppressive manner either in relation to the arrest or imprisonment or in conducting the prosecution. 90 (ii) ... which includes conduct subsequent to the wrong 1.7 Conduct subsequent to the wrong may give rise to aggravated damages. 91 This is particularly well-established in defamation, where the subsequent conduct of the 72 73 74 [1964] AC 1129, 1233. [1964] AC 1129, 1231. [1964] AC 1129, 1232. 75 [1964] AC 1129, 1221, 1232. 76 77 78 79 [1964] AC 1129, 1221, 1232. [1964] AC 1129, 1229, 1232. [1972] AC 1027. [1972] AC 1027, 1085E. 80 [1972] AC 1027, 1089C-D, 1124G. 81 [1972] AC 1027, 1089C-D. 82 83 84 [1972] AC 1027, 1089C-D. [1972] AC 1027, 1121H. [1972] AC 1027, 1124G. 85 See eg McMillan v Singh (1985) 17 HLR 120; Asghar v Ahmed (1985) 17 HLR 25; Jones & Lee v Miah & Miah (1992) 24 HLR 578. See also Arden & Partington on Quiet Enjoyment (3rd ed, 1990) pp 31-45. 86 See eg White v MPC, The Times 24 April 1982; Thompson v MPC [1997] 3 WLR 403. See also R Clayton and H Tomlinson, Civil Actions Against the Police (2nd ed, 1992) pp 385, 387-389, and R Clayton and H Tomlinson, Police Actions (1997) pp 41-42 and Appendix 2. 87 See eg Ley v Hamilton (1935) 153 LT 384, as interpreted by Lord Devlin in Rookes v Barnard [1964] AC 1129, 1230-1231; Broome v Cassell [1972] AC 1027, 1079F-H 88 [1997] 3 WLR 403. 89 The torts in question were wrongful arrest/false imprisonment and malicious prosecution. 90 [1997] 3 WLR 403, 417B-C. 91 Conduct prior to the wrong may also be put forward as an aggravating feature, but here its relevance may be as evidence of malice: Prince Ruspoli v Associated Newspapers plc 11 December 1992 (unreported, CA). 12
defendant or his legal advisers permits an increase in the level of damages. In Sutcliffe v Pressdram Ltd 92 Nourse LJ gave the following examples: ... failure to make any or any sufficient apology and withdrawal; a repetition of the libel; conduct calculated to deter the plaintiff from proceeding; persistence, by way of prolonged or hostile crossexamination of the plaintiff or in turgid speeches to the jury, in a plea of justification which is bound to fail; the general conduct either of the preliminaries or of the trial itself in a manner calculated to attract further wide publicity; and persecution of the plaintiff by other means ... 93 In cases of defamation, later conduct of this sort is closely bound up with the wrong itself; indeed, it can be seen as an extension or prolongation of the libel. 1.8 The conduct of the defendant in the process of litigation and at trial has also been considered relevant to aggravated damages in cases of malicious prosecution, 94 false imprisonment 95 and discrimination. 96 Where, in such cases, the defendant persists in making damaging allegations calculated to sully the plaintiff’s reputation, that conduct can be viewed as analogous to defamation. 97 In discrimination cases, further victimisation of the plaintiff following the discriminatory treatment has attracted an award of aggravated damages, 98 as has the wholly inadequate manner in which an employer investigated an applicant’s complaints of discrimination. 99 (iii) ... causing injury to the plaintiff’s feelings 1.9 The requirement of injury to feelings means that a plaintiff who is unaware of the defendant’s exceptional conduct or motive cannot claim aggravated damages, although the conduct might otherwise excite outrage or offence. 100 One would also expect that a corporate plaintiff should have no entitlement to aggravated damages, because it cannot experience feelings of outrage or offence. 101 Nevertheless, in Messenger Newspapers Group Ltd v National Graphical Association 102 it was held that a limited 92 [1991] 1 QB 153. 93 [1991] 1 QB 153, 184E-F. 94 Marks v Chief Constable of Greater Manchester, The Times 28 January 1992 (CA); Thompson v MPC [1997] 3 WLR 403. 95 Warby v Cascarino, The Times 27 October 1989; Thompson v MPC [1997] 3 WLR 403. 96 Duffy v Eastern Health & Social Services Board [1992] IRLR 251; Alexander v Home Office [1988] 1 WLR 968, 978B-D. 97 The wrongs referred to have been said to involve a defamatory element. For example, “[a] false imprisonment does not merely affect a man’s liberty; it also affects his reputation ...” (Walter v Alltools Ltd (1944) 61 TLR 39, 40, per Lawrence LJ). 98 Duffy v Eastern Health & Social Services Board [1992] IRLR 251, 257, para 15. 99 Prison Service v Johnson [1997] ICR 275, 287G-H. 100 Alexander v Home Office [1988] 1 WLR 968, 976C-D; Ministry of Defence v Meredith [1995] IRLR 539, 542-543, paras 30-36. Cf H Luntz, Assessment of Damages for Personal Injury and Death (3rd ed, 1990) p 71, para 1.7.14. 101 Columbia Pictures Industries Inc v Robinson [1987] Ch 38, 88H, per Scott J. 102 [1984] IRLR 397, 407, paras 77-78. 13
Page 1 and 2: THE LAW COMMISSION Item 2 of the Si
Page 3 and 4: should emphasise at the outset that
Page 5 and 6: practitioners and academics) consid
Page 7 and 8: punitive damages should survive for
Page 9 and 10: and sued, he will, at worst, be mad
Page 11: ‘exceptional’ 62 conduct or mot
Page 15 and 16: an undertaking in damages which was
Page 17 and 18: likely adversely to affect him or h
Page 19 and 20: noting the concession by the respon
Page 21 and 22: Kralj, which was an “excruciating
Page 23 and 24: two of their lordships who gave jud
Page 25 and 26: such a restriction, unless one take
Page 27 and 28: (1) legislation should provide that
Page 29 and 30: 1.3 Historically, a number of diffe
Page 31 and 32: nuisance 195 has also been recognis
Page 33 and 34: day market). At first instance, Pet
Page 35 and 36: equired to trigger an account of pr
Page 37 and 38: disgorgement to principals of bribe
Page 39 and 40: disgorge what he has saved by commi
Page 41 and 42: there is no consensus among comment
Page 43 and 44: (a) Restitutionary damages should b
Page 45 and 46: the purposes of the claim to restit
Page 47 and 48: account of profits and damages but
Page 49 and 50: area. The problem of ‘election of
Page 51 and 52: there is no such in-built limitatio
Page 53 and 54: PART IV EXEMPLARY DAMAGES: PRESENT
Page 55 and 56: that exemplary damages were not awa
Page 57 and 58: 1.96 These questions were recently
Page 59 and 60: to be irrelevant to, and even incon
Page 61 and 62: 1.107 Consistently with the apparen
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manner. As shall be seen below, it
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1.117 Major Commonwealth jurisdicti
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In the present case there is the fu
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an aspect of the case which made ex
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1.137 The ‘non-discrimination’
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We have ... been referred to a numb
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Thus it has been suggested that the
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underlying such damages, that of pu
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easons of fairness to defendants: i
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(6) Multiple plaintiffs 1.165 Very
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Legal Services Act 1990 and Rules o
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MR himself suggested figures to ass
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Thompson v MPC achieves its aims, t
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proceeded on the basis that the doc
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would be that to allow insurance wo
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PART V EXEMPLARY DAMAGES: REFORM 1.
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1.8 As regards the divide between t
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3. THE CASE FOR AND AGAINST EXEMPLA
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(5) The criminal approach to vicari
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particularly unsatisfactory to rely
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1.34 On the first interpretation an
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4. OUR CENTRAL REFORM PROPOSALS (1)
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when applying this principle a cour
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indefensible position which the com
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... the availability of exemplary d
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But these concepts are inadequate,
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for a wrong which arises under an A
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view that such an award would be co
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the promise. To award exemplary dam
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else should, actually constitute in
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awarded as damages (including exemp
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1.88 The first argument is that it
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(2) the relationship between (on th
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was determined, the court could mak
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(iii) A ‘last resort’ remedy (2
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A discretionary or an absolute bar
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1.117 We have therefore recommended
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discrimination between, for example
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(24) our draft Bill should lay down
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1.141 In our view, this is necessar
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the punitive damages award on the A
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to that remedy. 720 Yet this means
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(31) once punitive damages have bee
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e so where the defendant consents t
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1.183 We also think that any ‘adv
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liability’) which applies to any
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(c) Implications of the adoption of
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‘moderation’ and of ‘proporti
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conduct. 756 Although it has consis
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liable to pay a sum of money which
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1.224 The second difference is that
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award if they succeed in persuading
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approaches. 786 132, 787 Although i
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... [c]ontracts should only be held
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(ii) The problems of defining with
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the insured wrongdoer’s inability
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award to be covered by insurance, t
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punitive damages, no enactment shal
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one case, 831 and arguably done so
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common law to hold, if necessary, t
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PART VI SUMMARY OF RECOMMENDATIONS
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(19) the ‘cause of action’ test
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damages shall be permitted for that
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MICHAEL SAYERS, Secretary 11 Septem
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Nigel Ley Harvey McGregor QC Tim Ow
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APPENDIX C Persons and organisation
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Steve Hedley John Hodgson L Hoyano
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