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Aggravated, Exemplary and Restitutionary ... - Law Commission

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to that remedy. 720<br />

Yet this means that some grave instances of wrongdoing - inter<br />

alia, in terms of the numbers of persons harmed - must go unpunished by the law.<br />

We are extremely reluctant to accept this result, unless compelled to do so by the<br />

clear absence of any practicable solution.<br />

1.160 Very little assistance can be obtained from existing English <strong>and</strong> Commonwealth<br />

jurisdictions in resolving this issue. Nor does an awareness of the various<br />

approaches adopted in the USA, 721<br />

where ‘multiple plaintiff’ issues regularly arise,<br />

do other than reinforce the perception that this is an intensely difficult area. 722<br />

We<br />

have therefore found it necessary to devise our own scheme.<br />

(a) The nature of, <strong>and</strong> difficulties caused by, ‘multiple plaintiff’ claims<br />

1.161 One course of conduct may constitute or involve wrongs against more than one<br />

person; each victim may have a separate cause of action. Where the course of<br />

conduct is not just ‘wrongful’, but also ‘punishment-worthy’, then the apparent<br />

corollary is that each plaintiff should have a claim to punitive damages. In such<br />

circumstances there is a real risk that the defendant may be excessively punished.<br />

(b) Our basic principle: ‘first past the post takes all’<br />

1.162 We consider that the plaintiffs who are ‘first past the post’ must ‘take all’. This has<br />

several implications. The first action in which punitive damages are awarded to<br />

one or more ‘multiple plaintiffs’ will be the only action in which they can be<br />

awarded by a court (the ‘first successful action’). The defendant’s liability to pay<br />

punitive damages for the conduct that is punished in that action is thereafter<br />

extinguished; 723<br />

thus no ‘multiple plaintiff’ has any right to claim any further sum<br />

of punitive damages in respect of it. Furthermore, even if other multiple plaintiffs<br />

have well-founded claims to punitive damages, they will have no right to any part<br />

of the award(s) made in the first successful action.<br />

720 See, in particular, para 4.47 above, discussing AB v South West Water Services [1993] QB<br />

507. See also S M Waddams, The <strong>Law</strong> of Damages (2nd ed, 1991) para 11.430; having<br />

considered some of the problems raised, he concludes that “[t]hese considerations tend<br />

against the award of any exemplary damages in such cases”. Professor Waddams expressed<br />

similar views on consultation.<br />

721 Legislative intervention, proposed or enacted, has included: ‘caps’; a ‘first comer gets all’<br />

rule; a rule which ‘credits’ a defendant with prior punitive payments; a rule which permits<br />

punitive damages class actions at the instance of a defendant; the consolidation of all<br />

multiple punitive claims; the use of an injunction against the enforcement of individual<br />

punitive judgments until they could all be consolidated for a single administration in a<br />

single court; <strong>and</strong> the bifurcation or trifurcation of trials, to separate liability <strong>and</strong> damages<br />

issues from punitive proof. The courts have generally recognised multiple punitive liability.<br />

722 See, for example, D B Dobbs, <strong>Law</strong> of Remedies (2nd ed, 1993) § 3.11(8), pp 337-341, in<br />

which he concludes that “it seems safe to say that none of the solutions so far provided by<br />

either courts or legislatures seem satisfactory”. Most legislative intervention, proposed <strong>and</strong><br />

enacted has, he suggests, “so far failed to recognise the complexities of the problem of<br />

multiple punitive awards”. The courts have meanwhile seemed “rather casual in their<br />

willingness to inflict repeated punishments for a single act”, a possibility which we reject, on<br />

grounds of unfairness to defendants (that is, the unfairness of ‘excessive’ punishment).<br />

723 There will obviously be no bar to claims to punitive damages which are founded on<br />

conduct other than that which was the basis for the claim in the ‘first successful action’.<br />

145

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