Aggravated, Exemplary and Restitutionary ... - Law Commission

(iii) “The ‘first past the post takes all’ approach encourages multiple plaintiffs to race
to court”
1.179 A third objection is that the ‘first past the post takes all’ approach encourages a
‘race to court’. If the aggregate award made to ‘successful’ multiple plaintiffs will
not be substantially greater merely because the court has more multiple plaintiffs
before it, then is there not a financial incentive for multiple plaintiffs to proceed
alone, or in as small a group as possible? The fewer the people to whom punitive
damages are awarded, the larger the likely entitlement of any particular ‘successful’
individual to punitive damages.
(iv) “Defendants could still end up over-punished by your scheme”
1.180 A fourth objection is that the ‘first award(s) bar’ and the principle of avoiding
‘excessive punishment’ will not always be adequate to prevent defendants from
being excessively punished in multiple plaintiff cases. Nothing in our proposals
affects the entitlement of multiple plaintiffs to claim other remedies. Accordingly,
even if a multiple plaintiff, who was not a party to the first action in which a
punitive damages award was made, could not claim punitive damages in any later
action, his or her claim to, inter alia, compensatory damages is not affected. Such
subsequent claims arguably pose a risk of excessive punishment, because they
could falsify the basis on which the award was made in the first action.
1.181 This problem relates to the ‘if, but only if’ test. This will have to have been
satisfied in the ‘first successful action’ (because it is a pre-condition of any award
of punitive damages). In other words, the court will have to have considered that
the other remedies available to it were inadequate to punish and deter. The sum it
awarded as punitive damages would reflect the extent of the inadequacy of the
other remedies then available to it. But, of course, the defendant’s liability is not
limited to a liability to those victims of his wrongdoing who are before the court in
the ‘first successful action’; it also includes a liability to any other person who can
subsequently show that the defendant’s conduct constituted a wrong against them
- and in particular, a liability to pay compensation. 727
Accordingly, the defendant’s
total liability for wrongs which he or she committed by one course of conduct may
subsequently (that is, after the first successful action) be found to exceed that
which the court had assumed as a basis for deciding whether punitive damages
were necessary in the ‘first successful action’.
1.182 We are not persuaded that any of these four ‘objections’ fatally undermine the ‘first
past the post takes all’ approach. In particular, a plaintiff cannot assert as strong
an ‘entitlement’ to punitive damages as to compensatory damages, because
punitive damages are always a windfall to plaintiffs who receive them. Indeed, we
have seen that it is a controversial question whether any plaintiff should receive
punitive damages (rather than, for example, the state); our justifications for
plaintiff-receipt were practical, rather than doctrinal ones. 728
The ‘first past the
post takes all’ principle does not affect a plaintiff’s right to other remedies.
727 Indeed, it also includes a liability to multiple plaintiffs who were awarded, eg,
compensation, in an action before the ‘first successful action’.
728 See paras 5.142-5.148 above.
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