Aggravated, Exemplary and Restitutionary ... - Law Commission

an undertaking in damages which was given by a plaintiff when obtaining an Anton
Piller order, because of the plaintiff’s shoddy conduct when obtaining the order, and
the oppressive manner in which the order was executed. 114
1.11 It is hard to discern any common thread linking these ‘wrongs’. 115
Most, though not
all, are actionable per se. 116
They involve interference with various types of interest: for
example, a dignitary interest (assault and battery, false imprisonment, malicious
prosecution, defamation, intimidation and unlawful discrimination), a proprietary
interest (trespass to land and nuisance) or a commercial interest (unlawful interference
with business). In most, though not all, the primary damage is likely to be nonpecuniary.
All that can be said with any measure of confidence is that they are all torts,
and, moreover, torts for which damages tend to be ‘at large’. 117
But this is not a
sufficient definition, since not all wrongs where damages are ‘at large’ in this sense
attract aggravated damages. 118
(2) The assessment of aggravated damages
1.12 If, as clear and high authority has stated, aggravated damages are compensatory in
nature, and they compensate a plaintiff for (broadly) the mental distress which he
or she suffered owing to the manner in which the defendant committed the wrong,
they should be assessed in a similar way to other forms or ‘heads’ of damages for
non-pecuniary or ‘intangible’ losses.
1.13 Particular problems have arisen where aggravated damages are assessed by
juries. 119
This is so primarily in claims arising in respect of the torts of false
imprisonment, malicious prosecution, fraud and defamation. As a result of
startling variations in jury-assessed awards of damages, which included aggravated
damages, against the police for false imprisonment and for malicious prosecution,
the Court of Appeal in Thompson v MPC considered that:
114 Columbia Picture Industries Inc v Robinson [1987] Ch 38.
115 But note that damages awarded pursuant to an undertaking in damages cannot as such be
characterised as damages ‘for a wrong’, let alone for a ‘tort’.
116 It should be noted that, although malicious prosecution requires actual damage in order to
be actionable, the fiction is observed that certain types of damage will inevitably flow.
117 Ie “not limited to the pecuniary loss that can be specifically proved”: Rookes v Barnard
[1964] AC 1129, 1221, per Lord Devlin. In Broome v Cassell [1972] AC 1027, 1073G-H,
Lord Hailsham took the view that:
The expression ‘at large’ should be used in general to cover all cases where
awards of damages may include elements for loss of reputation, injured feelings,
bad or good conduct by either party, or punishment, and where in consequence
no precise limit can be set in extent. It would be convenient if ... it could be
extended to include damages for pain and suffering or loss of amenity. Lord
Devlin uses the term in this sense in Rookes v Barnard ... But I suspect he was
there guilty of a neologism. If I am wrong, it is a convenient use and should be
repeated.
118 Aggravated damages are not available in personal injury actions based on negligence, where
the plaintiff has sustained non-pecuniary harm in the form of pain, suffering and loss of
amenity: Kralj v McGrath [1986] 1 All ER 54. See paras 2.26-2.36 below.
119 On the problems of assessing damages for non-pecuniary loss in personal injury claims, see
Damages for Personal Injury: Non-Pecuniary Loss (1995) Consultation Paper No 140.
15