Aggravated, Exemplary and Restitutionary ... - Law Commission

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