Aggravated, Exemplary and Restitutionary ... - Law Commission

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.
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