Aggravated, Exemplary and Restitutionary ... - Law Commission

1.163 We explain the scheme by which we propose to implement the ‘first past the post
takes all’ principle in the next section. We then defend what may, at first sight,
appear to be an objectionable approach.
(c) Our scheme implementing the ‘first past the post takes all’
approach
1.164 Although the core of our approach is aptly expressed by the principle that the ‘first
past the post takes all’, the practical implementation of this approach raises several
difficult questions. Who are ‘multiple plaintiffs’ to whose claims to punitive
damages we seek to apply the ‘first past the post takes all’ principle? How should
courts approach the issue of the availability of punitive damages if they are faced
with claims by ‘multiple plaintiffs’? And, having decided that punitive damages are
available to one or more ‘multiple plaintiffs’, how should those damages be
assessed?
(i) The concept of a ‘multiple plaintiff’ case
1.165 We consider that special provisions are necessary wherever conduct of a defendant
constitutes torts, equitable wrongs or statutory wrongs against two or more
persons. 724
The reason is that it is in this situation that the risk of excessive
punishment, described above, is at its most severe. It is irrelevant that the wrongs
which have been committed may be legally different; what is important is that
certain conduct of the defendant may give rise to allegations by two or more
people, in a single action or in a succession of separate actions, that a wrong has
been committed against them. The potential for multiple claims to awards of
exemplary damages in respect of the same conduct of the defendant is the same,
whether that conduct is alleged to constitute, for example, the tort of trespass visà-vis
A and B, or the tort of trespass vis-à-vis A and the tort of nuisance vis-à-vis
B. We therefore recommend that:
(30) our special multiple plaintiffs scheme should apply where conduct
of a defendant involves torts, equitable wrongs or statutory wrongs
against two or more persons. (Draft Bill, clause 7(1))
(ii) The availability of punitive damages
1.166 In order to be entitled to an award of punitive damages, a ‘multiple plaintiff’ will
need to satisfy all the conditions which must be satisfied by an ordinary claimant
to such a remedy. 725
However, in order to deal with the rather difficult problems
that are raised by ‘multiple plaintiff’ claims, we propose an additional limitation.
The limitation which we recommend is as follows:
724 The question of whether the conduct alleged by P1 as the basis for a claim to punitive
damages from D is ‘the same as’ conduct alleged by P2 (or P3 ...), is, we believe, one best
left to courts to resolve.
725 For example, each ‘multiple plaintiff’ must show that the defendant committed a tort,
equitable wrong (as defined) or statutory wrong (as defined) against him or her, and that
the defendant’s conduct in so doing, or subsequent to the wrong, showed a deliberate and
outrageous disregard for that plaintiff’s rights.
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