Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
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else should, actually constitute independent torts. 649<br />
Presenting such claims as<br />
claims under an undertaking is an invitation to loose analysis <strong>and</strong> tends to<br />
discourage the legitimate development of tort law. 650<br />
Denying punitive damages<br />
here should not lead to any significant ‘gaps’ in the law on punitive damages,<br />
precisely because a tort-based claim will be available or else could (<strong>and</strong> should, if<br />
necessary) be developed. 651<br />
We have accordingly recommended 652<br />
that punitive<br />
damages should not be awardable under an undertaking in damages.<br />
(c) Major limitations on the expansion<br />
1.78 Our central recommendations extend the existing scope of the law on punitive<br />
damages in two major respects. The first ‘expansion’ involves the replacement of<br />
the categories test with a general test of ‘deliberate <strong>and</strong> outrageous disregard of the<br />
plaintiff’s rights’. 653<br />
The second involves an extension of the category of civil<br />
wrongs in respect of which punitive damages are awardable significantly beyond<br />
the present scope of the cause of action test. Punitive damages will be awardable<br />
in respect of any tort, (most) equitable wrongs, <strong>and</strong> civil wrongs which arise under<br />
statutes where such an award would be consistent with the policy of the statute in<br />
question.<br />
1.79 Nevertheless we recognise the need to constrain this expansion, in line with some<br />
of the arguments advanced against punitive damages, <strong>and</strong> so as to ensure that<br />
proper concern is shown for, inter alia, the efficient administration of justice <strong>and</strong><br />
the risk of unfairness to defendants.<br />
1.80 The restrictions which we propose will take several different forms; we explain<br />
each in detail below:<br />
• giving the task of deciding the availability <strong>and</strong> assessment of punitive<br />
damages to judges only, <strong>and</strong> not to juries<br />
• making the availability of punitive damages conditional on the other<br />
remedies which the court awards being inadequate to punish <strong>and</strong> deter<br />
the defendant<br />
649 These could include: torts committed on the bringing of an action out of malice or for<br />
some other ulterior purpose (especially abuse of process), or on the breach of the terms of<br />
an Anton Piller order in the course of executing it (trespass to l<strong>and</strong> or property, or<br />
negligence).<br />
650 See the restrictive approach taken to the tort of abuse of process in Digital Equipment v<br />
Darkcrest Ltd [1984] Ch 512.<br />
651 An alternative would be a specially-created remedy which is directed at abuses associated<br />
with certain forms of interlocutory relief: see, in particular, the Lord Chancellor’s<br />
Department, Anton Piller Orders, A Consultation Paper (1992), referred to at para 5.77, n 103<br />
above.<br />
652 See para 5.44, recommendation (19), above.<br />
653 It should be emphasised, however, that if, under the present law, Lord Devlin’s first<br />
category can include ‘innocent’ wrongdoing, our ‘expansionist’ model is to that limited<br />
extent more restrictive than the present law. See para 4.7 above.<br />
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