Aggravated, Exemplary and Restitutionary ... - Law Commission

1.183 We also think that any ‘adverse’ effects of the ‘first past the post takes all’ principle
can be removed or diminished, if necessary. Underlying each of the above
concerns is the assumption that, in practice, the ‘bar’ will lead to punitive damages
being awarded to only a very small proportion of potential (and potentially
successful) claimants. We are not persuaded that this assumption is generally a
correct one. Procedures for joinder or consolidation already exist which can be
used by parties/courts to ensure that actions in which punitive damages are
claimed by multiple plaintiffs include at least a substantial number of likely
claimants. 729
Incentives to use those procedures may well be present. For
example, a potential claimant has an incentive to join an action which has already
been initiated by other victims of the defendant’s conduct, and which is likely to
reach judgment before any action which the former subsequently initiates could do
so. If that earlier action turns out to be the ‘first successful action’, any potential
or actual claimant who was not a party to that action will be barred from claiming
punitive damages. A court which is aware that two or more actions are in
progress, arising out of one incident, may well be able (and willing) to consolidate
the actions, on its own initiative or on an application - particularly because of
similarity between the issues of fact and law raised, and because of the adverse
effect of not being party to the one action in which punitive damages are awarded
(that is, loss of the right to claim punitive damages). Indeed, in mass tort cases,
the incentives for plaintiffs to join together, pooling information, resources and
costs, may be sufficiently great that, even with the enticement of a large(r) award
of punitive damages, a ‘race to court’ is unlikely. This may a fortiori be the case,
given the difficulty in such cases of establishing (at least) reckless wrongdoing,
which is outrageous in character.
1.184 Even if practice reveals this belief to be misguided, we believe that it is a problem
that can be dealt with, if and when it arises, without requiring any alteration to the
‘first past the post takes all’ principle expressed in our statutory scheme. For
example, the Rules Committee could develop procedures and powers for courts to
deal with problems which are revealed in practice. These might include, for
example, a notice-giving procedure, whereby a court, considering that there are
multiple plaintiffs (present or potential) who are not parties to the action before it,
could order that notice be given, in order to alert those others to the action before
the court, and offer them an opportunity to obtain joinder or consolidation. Such
a reform could be tied in with Lord Woolf’s reforms (if and when implemented), 730
and with any general initiative on reforming procedure for multi-party actions
generally. 731
729 See, in particular, RSC O 15, r 4(1) (joinder of parties) and RSC O 4, r 9 (consolidation);
see for guidance on the use of these powers in group actions, the Supreme Court Procedure
Committee’s Guide for Use in Group Actions (May 1991), especially ch 3. Successful
resolution of group claims is likely to require active judicial case management. We note that
a central theme in Lord Woolf MR’s recent proposals for reform of the civil justice system
(Access to Justice, Final Report (1996)) similarly requires courts to assume such a role.
730 See, in particular, Lord Woolf MR, Access to Justice, Final Report (1996).
731 See, for recent proposals for reform of the law relating to group actions, inter alia, Lord
Woolf MR, Access to Justice, Final Report (1996) ch 17; The Law Society, Group Actions Made
Easier (September 1995).
151