Aggravated, Exemplary and Restitutionary ... - Law Commission

(31) once punitive damages have been awarded to one or more ‘multiple
plaintiffs’ in respect of the defendant’s conduct, no later claim to
punitive damages shall be permitted for that conduct by any
‘multiple plaintiff’. (Draft Bill, clause 7(4))
1.167 This provision means that a ‘multiple plaintiff’ will need to satisfy one additional
condition if his or her claim is to succeed: there must have been no previous action
brought by one or more other ‘multiple plaintiffs’ in which punitive damages have
been awarded in respect of the defendant’s conduct.
(iii) The assessment of punitive damages
1.168 We consider that a court should make a separate assessment of punitive damages
for each multiple claimant. That is, the court should decide upon an appropriate
sum by reference to the circumstances of the particular plaintiff before it. One
plaintiff may have provoked the defendant to act in such a way that he or she
committed a wrong against the provoking plaintiff and several others. If so, it is
likely that the award (if any) which is made to the provoking plaintiff will be
significantly less, in the light of his or her responsibility for the wrongful conduct,
than any which is made to the other, non-provoking plaintiffs. Where the
defendant’s conduct vis-à-vis the plaintiffs is essentially the same, it would
obviously be open to a court to make identical ‘individually-assessed’ awards to
each of the plaintiffs.
1.169 Nevertheless, we do consider that a ‘special’ approach must be taken to
assessments of punitive damages in ‘multiple plaintiff’ cases. It should be laid
down in statute that the aggregate award of punitive damages to two or more
multiple plaintiffs should conform to what we call the principles of ‘moderation’
and ‘proportionality’, which apply to limit the assessment of individual punitive
damages awards. In other words, the aggregate award should not punish the
defendant ‘excessively’ for his conduct. We therefore recommend that:
(32) if the court intends to award punitive damages to two or more
multiple plaintiffs in the same proceedings, the aggregate amount
awarded must be such that, while it may properly take account of
the fact that the defendant has deliberately and outrageously
disregarded the rights of more than one person, it does not punish
the defendant excessively for his conduct. (Draft Bill, clause 7(3))
1.170 This express limitation on the total level of punitive damages awards in multiple
plaintiff cases is, in effect, an application of the principles of moderation or
proportionality (which are expressed in clause 5(2) of the draft Bill). 726
But for
two reasons, we think that such a special statutory limitation is still required. The
first is that our assessment provisions (in particular, clause 5 of the draft Bill) are
otherwise directed only at individual assessments. As a result, the principles of
proportionality and moderation (in clause 5(1)) prima facie only apply to require
that the award which the court is making for the defendant’s conduct vis-à-vis a
particular individual be proportionate and moderate. Without further provision
they do not furnish a separate limitation - the requirement that the aggregate of a
726 See paras 5.120-5.122 above.
147