Aggravated, Exemplary and Restitutionary ... - Law Commission

should never exceed the minimum “necessary to meet the public purpose”
underlying such damages: namely, punishing the defendant for his or her
outrageously wrongful conduct, deterring him or her and others from similar
conduct in the future, and marking the disapproval of the court of such conduct.
This constraint is required by fairness to defendants: it aims to restrict, to what is
strictly justifiable by reference to the effective pursuit of the aims of punitive
awards, any actual or threatened interference with their civil liberties due to such
awards. 695
1.122 The principle of ‘proportionality’ is justified by the consideration that no absolute
pecuniary value can be ascribed to the sum which is required to advance the aims
of retribution, deterrence and disapproval. Because of this, it is essential, if there is
to be consistency between punitive awards, for the particular sum which must be
paid by a defendant to be proportional to the gravity of his wrongdoing. More
heinous wrongdoing will thereby be punished more harshly, and less heinous
wrongdoing, less harshly.
(vii) The non-exhaustive list of factors relevant to the discretionary assessment of
awards
1.123 We recognise the need for flexibility in the assessment of punitive awards. This is
needed as a matter of efficacy and as a matter of fairness to defendants. The
reason is that flexibility enables awards to be tailored to the nature of the
defendant’s conduct and its consequences, and so to the degree of retribution,
deterrence and disapproval which a punitive award must achieve.
1.124 Flexibility should not, however, be purchased at the price of arbitrariness. We have
therefore sought to structure the discretion to award punitive damages by the
inclusion of a non-exhaustive list of factors which should be considered, where
relevant, in assessing awards. This list should encourage judges to rationalise the
size of awards, rather than leaving them to select figures in an unreasoned way; it
should also aid consistency between awards, by encouraging them to articulate the
particular aspects of cases which call for lower or higher awards.
1.125 The factors listed in our recommendation 696
are as follows:
“the state of mind of the defendant ...”
1.126 A defendant’s conduct has to attain a high degree of seriousness before an award
of punitive damages is available to a court: he or she must show a ‘deliberate and
outrageous disregard for the plaintiff’s rights’. But clearly there may be substantial
gradations in the culpability of a defendant’s state of mind, even within this
category of serious conduct. Accordingly, this factor is intended to permit
695 Thus, for example, where freedom of expression is at stake, courts should subject large
jury-assessed awards of damages to more searching scrutiny (Rantzen v MGN Ltd [1994]
QB 670) and awards of punitive damages must never exceed the minimum necessary to
meet the public purposes underlying such damages (John v MGN Ltd [1997] QB 586): see
paras 4.64-4.67 above. Our chosen formulation consciously resembles those which govern
the extent of permissible derogations from rights ‘guaranteed’ by the European Convention
on Human Rights.
696 See para 5.44, recommendation (22), above.
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