Aggravated, Exemplary and Restitutionary ... - Law Commission

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APPENDIX B Persons and organisations who commented on Consultation Paper No 132 Consultation took place in 1993-1994 and closed on 1 March 1994. The descriptions of consultees may have altered since then. GOVERNMENT DEPARTMENTS Lord Chancellor’s Department Treasury Solicitor JUDICIARY AND PRACTIONERS (1) Judiciary Mr Justice Aldous Mr Justice Bell Sir Thomas Bingham MR Mr Justice Blofeld Council of Her Majesty’s Circuit Judges Mr Justice Cresswell Sir Michael Davies Mr Justice Drake Mr Justice Dyson Mr Justice Garland John Hicks QC, Official Referee Mr Justice Jacob Mr Justice Jowitt Sir Michael Kerr Lord President, Court of Session Mrs A B Macfarlane, Master of the Court of Protection Mr Justice Morland Sir Nicholas Phillips Lord Justice Staughton Lord Justice Stuart-Smith Mr Justice Swinton Thomas Mr Justice Tuckey Mr Justice Wright (2) Barristers Nicholas Ainley Robert Bailey-King Nicholas Blake Sir Wilfred Bourne QC Michael Burton QC Richard Clayton David Eady QC 2 Garden Court (Housing Law Practitioners) Jeremy Gompertz QC Kenneth Hamer Robert Hill Michael Lerego Jeremy Lewis 190
Nigel Ley Harvey McGregor QC Tim Owen 1 Pump Court (Robert Latham) 14 Tooks Court (3) Solicitors Carlos Dabezies, Kensington Citizens Advice Bureau Peter Carter-Ruck and Andrew Stephenson, Peter Carter-Ruck & Partners C J S Hodges, McKenna & Co Lovell White Durrant (A M Dimsdale Gill) Robert Morfee, Clarke Willmott & Clarke Keith Schilling, Schilling & Lom Richard Shillito, Oswald Hickson, Collier & Co Nigel Taylor, Sinclair Roche & Temperley Brian Thompson & Partners; Robin Thompson & Partners P K J Thompson, Solicitor to the Departments of Health and Social Security A L H Willis, Flint Bishop & Barnett ACADEMICS N H Andrews Professor E M Barendt Dr Darryl Biggar Professor Margaret Brazier Professor R A Buckley A S Burrows P Cane B A Childs Dr Gerhard Dannemann Professor A M Dugdale Dr Evelyn Ellis Professor D J Feldman Professor M P Furmston P R Ghandhi Steve Hedley Professor J A Jolowicz Michael A Jones A P Le Sueur Professor B S Markesinis R McCorquodale R O’Dair Professor A I Ogus D L Parry Professor M Partington Restitution Section, Society of Public Teachers of Law Professor W V H Rogers L D Smith Keith Stanton Professor Hans Stoll A Tettenborn Tort Lawyers’ Discussion Group, King’s College, London G J Virgo Professor S M Waddams J A Weir 191
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THE LAW COMMISSION Item 2 of the Si
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should emphasise at the outset that
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practitioners and academics) consid
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punitive damages should survive for
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and sued, he will, at worst, be mad
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‘exceptional’ 62 conduct or mot
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defendant or his legal advisers per
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an undertaking in damages which was
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likely adversely to affect him or h
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noting the concession by the respon
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Kralj, which was an “excruciating
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two of their lordships who gave jud
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such a restriction, unless one take
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(1) legislation should provide that
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1.3 Historically, a number of diffe
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nuisance 195 has also been recognis
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day market). At first instance, Pet
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equired to trigger an account of pr
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disgorgement to principals of bribe
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disgorge what he has saved by commi
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there is no consensus among comment
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(a) Restitutionary damages should b
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the purposes of the claim to restit
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account of profits and damages but
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area. The problem of ‘election of
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there is no such in-built limitatio
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PART IV EXEMPLARY DAMAGES: PRESENT
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that exemplary damages were not awa
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1.96 These questions were recently
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to be irrelevant to, and even incon
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1.107 Consistently with the apparen
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manner. As shall be seen below, it
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1.117 Major Commonwealth jurisdicti
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In the present case there is the fu
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an aspect of the case which made ex
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1.137 The ‘non-discrimination’
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We have ... been referred to a numb
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Thus it has been suggested that the
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underlying such damages, that of pu
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easons of fairness to defendants: i
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(6) Multiple plaintiffs 1.165 Very
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Legal Services Act 1990 and Rules o
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MR himself suggested figures to ass
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Thompson v MPC achieves its aims, t
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proceeded on the basis that the doc
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would be that to allow insurance wo
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PART V EXEMPLARY DAMAGES: REFORM 1.
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1.8 As regards the divide between t
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3. THE CASE FOR AND AGAINST EXEMPLA
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(5) The criminal approach to vicari
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particularly unsatisfactory to rely
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1.34 On the first interpretation an
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4. OUR CENTRAL REFORM PROPOSALS (1)
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when applying this principle a cour
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indefensible position which the com
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... the availability of exemplary d
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But these concepts are inadequate,
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for a wrong which arises under an A
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view that such an award would be co
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the promise. To award exemplary dam
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else should, actually constitute in
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awarded as damages (including exemp
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1.88 The first argument is that it
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(2) the relationship between (on th
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was determined, the court could mak
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(iii) A ‘last resort’ remedy (2
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A discretionary or an absolute bar
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1.117 We have therefore recommended
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discrimination between, for example
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Page 141 and 142: 1.141 In our view, this is necessar
Page 143 and 144: the punitive damages award on the A
Page 145 and 146: to that remedy. 720 Yet this means
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Page 149 and 150: e so where the defendant consents t
Page 151 and 152: 1.183 We also think that any ‘adv
Page 153 and 154: liability’) which applies to any
Page 155 and 156: (c) Implications of the adoption of
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Page 159 and 160: conduct. 756 Although it has consis
Page 161 and 162: liable to pay a sum of money which
Page 163 and 164: 1.224 The second difference is that
Page 165 and 166: award if they succeed in persuading
Page 167 and 168: approaches. 786 132, 787 Although i
Page 169 and 170: ... [c]ontracts should only be held
Page 171 and 172: (ii) The problems of defining with
Page 173 and 174: the insured wrongdoer’s inability
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Page 177 and 178: punitive damages, no enactment shal
Page 179 and 180: one case, 831 and arguably done so
Page 181 and 182: common law to hold, if necessary, t
Page 183 and 184: PART VI SUMMARY OF RECOMMENDATIONS
Page 185 and 186: (19) the ‘cause of action’ test
Page 187 and 188: damages shall be permitted for that
Page 189: MICHAEL SAYERS, Secretary 11 Septem
Page 193 and 194: APPENDIX C Persons and organisation
Page 195 and 196: Steve Hedley John Hodgson L Hoyano
Page 197: 197
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