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Aggravated, Exemplary and Restitutionary ... - Law Commission

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where the defendant had already been convicted in a criminal court for the same<br />

conduct. A clear statement of principle as to the relevance of criminal conviction<br />

is essential, but it is questionable whether existing case law provides such a<br />

statement. 688<br />

We have therefore recommended that a statutory provision should<br />

state that, in deciding whether to award punitive damages, the court must have<br />

regard to the principle that they must not usually be awarded if, at any time before<br />

the decision falls to be made, the defendant has been convicted of an offence<br />

involving the conduct which is alleged as the basis of the claim to punitive<br />

damages. 689<br />

1.114 This recommendation would operate in two main categories of situation: that is,<br />

where,<br />

(1) the criminal determination was made before civil proceedings were<br />

commenced<br />

(2) the criminal determination was not made before civil proceedings were<br />

commenced, but the civil proceedings were stayed until the criminal<br />

determination was made<br />

1.115 We do not think it necessary to propose any specific statutory elaboration <strong>and</strong><br />

structuring of civil courts’ powers in relation to staying proceedings <strong>and</strong>/or striking<br />

out of claims, in order to ensure that the policy which is embodied in our<br />

recommendations is consistently <strong>and</strong> effectively applied. Civil courts already have<br />

an inherent discretionary jurisdiction to stay proceedings <strong>and</strong> to strike out claims.<br />

We are confident that they will exercise that jurisdiction in a manner which<br />

respects the strong reasons which we identify as reasons for refusing, except in<br />

exceptional circumstances, to make a punitive award where a defendant has<br />

already been convicted by criminal court for conduct which is alleged in support<br />

of a claim for punitive damages. 690<br />

(iv) A ‘last resort’ remedy (3): the relevance of other sanctions imposed for the conduct<br />

1.116 The defendant may already have been subjected to some other sanction (that is,<br />

other than a criminal conviction), such as dismissal from his or her employment<br />

following disciplinary proceedings. If the remedy of punitive damages is truly to<br />

be a ‘last resort’, it ought not to be awarded where a sanction has already been<br />

imposed on the defendant for his or her conduct, <strong>and</strong> that sanction is adequate to<br />

punish him or her for it.<br />

688 See paras 4.36-4.43 above.<br />

689 See para 5.44, recommendation (21)(a), above, <strong>and</strong> draft Bill, clause 4(1).<br />

690 If the defendant is convicted, the principle which we propose requires that any punitive<br />

damages claim in respect of the same conduct must, in the absence of exceptional<br />

circumstances, be struck out. However, there is unlikely to be any objection to the plaintiff<br />

proceeding with his or her other claims (eg for compensatory damages). A stay on such<br />

civil proceedings ought normally to be removed. If, in contrast, the defendant is acquitted<br />

or the proceedings against him or her end before the conclusion of the criminal trial, then a<br />

plaintiff should normally be permitted to proceed with his or her civil claims (including a<br />

claim to punitive damages in respect of the conduct concerned).<br />

134

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