Aggravated, Exemplary and Restitutionary ... - Law Commission

1.88 The first argument is that it would be impossible in practice to prevent the jury
from being influenced, when it assesses compensation, by facts which are relevant
only to the availability and assessment of a punitive award, and which should not
affect the level of any compensatory award. An appropriately worded direction to
the jury, or an appropriate division in the arguments presented before the court,
obviously cannot guarantee that this will not occur. Nevertheless, we believe that
our ‘last resort’ test already offers a remedy for this problem. It would be open to
a court which is faced with a quasi-punitive, jury-assessed ‘compensatory’ award,
to conclude that this award alone was adequate to punish, deter and disapprove, or
that a smaller award of punitive damages is necessary than would otherwise have
been the case.
1.89 The second argument is that there are certain facts which the jury must have
decided at the stage of determining whether a wrong has been committed, which
are also relevant to the issues which the judge must decide, but which are not
apparent from the jury’s verdict, without more. 668
This argument would be that since
the judge cannot know what the jury decided, he does not have the factual basis
before him on the basis of which he can decide whether punitive damages are
available, and if so, what the appropriate sum should be. 669
But a similar problem -
of ascertaining the factual basis for sentencing from the jury’s verdict on liability -
arises in the context of the criminal law, and is not considered insurmountable. In
that context it is entirely a matter for the discretion of the judge, where the jury’s
verdict is consistent with two or more possible factual bases, whether the jury is
asked to indicate the factual basis on which they proceeded. 670
Where the jury
does not resolve the doubt, 671
the judge must always proceed, when sentencing an
offender, on a basis of fact that is consistent with the jury’s verdict. However, if
more than one view of the facts could have founded the jury’s verdict on ‘liability’,
the judge is entitled to reach his own conclusion as to which of those views is the
proper one, in the light of the evidence he has heard. 672
Archbold states:
668 This argument was raised by leading libel silks during the consultation process preparatory
and subsequent to Damages for Personal Injury: Non-Pecuniary Loss (1995) Consultation
Paper No 140, in relation to proposals for a ‘split’ between liability and quantum in actions
for defamation. The problem arises where a defendant unsuccessfully pleads justification.
Even if he or she fails with the plea, and is liable for defamation, facts may have been
established which will nevertheless serve to reduce the damages which he or she must pay
(some of the charges may have been true) See Pamplin v Express Newspapers Ltd [1988] 1
WLR 116 and Consultation Paper No 140, paras 4.98-4.100.
669 Strong objections were raised to one solution to this problem, discussed in Damages for
Personal Injury: Non-Pecuniary Loss (1995) Consultation Paper No 140, para 4.99, which
was that a judge should be entitled to ask the jury questions framed so as to elicit the jury’s
findings of fact in relation to the libel.
670 R v Cawthorne [1996] 2 Cr App R (S) 445, 450-451.
671 In particular, if the jury is not asked to indicate the basis for its verdict, or though asked,
refuses to do so.
672 A recent illustration of this approach is provided by the Court of Appeal’s decision in R v
Cawthorne [1996] 2 Cr App R (S) 445. Where a defendant is charged with murder, and
there is an alternative verdict of manslaughter open to the jury, there are often different
bases on which they can have reached that alternative verdict (for example, unlawful killing
without intent to kill or cause really serious injury; provocation; gross negligence). This was
the case in Cawthorne. The jury’s verdict of manslaughter was consistent with more than
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