Aggravated, Exemplary and Restitutionary ... - Law Commission

(23) in deciding the amount of punitive damages, the judge must consider,
where applicable, the following matters:
(a) the state of mind of the defendant;
(b) the nature of the right or rights infringed by the defendant;
(c) the nature and extent of the harm to the plaintiff that the defendant
caused or intended to cause by his conduct;
(d) the nature and extent of the benefit that the defendant derived or
intended to derive from his conduct;
(e) any other matter which the judge in his or her discretion considers
to be relevant (other than the means of the defendant). (Draft Bill,
clause 5(2))
(24) our draft Bill should lay down (in some instances by amending, and in
other instances by restating previous law) the main elements of the remedy
of punitive damages; but subject to this, the law relating to punitive
damages should continue to apply and be open to future common law or
statutory development. (Draft Bill, clause 1(1))
(25) punitive damages should not be awarded unless they have been specifically
pleaded by the plaintiff, together with the facts on which the party pleading
them relies. (Draft Bill, clause 3(2))
(26) the defendant should be allowed to show that he does not have the means,
without being caused undue hardship, to discharge the punitive damages
award which the court has decided to grant; where the defendant satisfies
the court that this is so, the court must award a lower sum which it
considers avoids that hardship. (Draft Bill, clause 6(2))
(27) our draft Bill should provide that the ‘defendant’s means’ include the fruits
of any contract of insurance against the risk of liability to pay punitive
damages. (Draft Bill, clause 6(4))
(28) where a court has decided to award punitive damages, it must indicate the
amount which it is minded to award, irrespective of the defendant’s means;
(Draft Bill, clause 6(1)); and if the court has reduced an award of punitive
damages on account of undue hardship to the defendant (under
recommendation (26)) the court should record what sum would have been
awarded, but for that reduction. (Draft Bill, clause 6(3))
(29) no proportion of a plaintiff’s punitive damages award should be ‘diverted’
to a public fund.
(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))
(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
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