Aggravated, Exemplary and Restitutionary ... - Law Commission

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Celia Wells ORGANISATIONS Association of British Insurers Association of Chief Police Officers Association of District Secretaries Association of Insurance and Risk Managers in Industry and Commerce Ltd Association of Law Teachers Association of Personal Injury Lawyers Automobile Association The City of London Law Society Commission for Racial Equality Confederation of British Industry Equal Opportunities Commission Equal Opportunities Commission, Northern Ireland General Council of the Bar, Law Reform Committee Health & Safety Executive Holborn Law Society Housing Law Practitioners’ Association Institute of Legal Executives The Law Society Liberty Lloyd’s Law Reform Committee London Solicitors Litigation Association National Association of Citizens Advice Bureaux The Newspaper Society Patent Solicitors Association Police Federation of England and Wales Scottish Law Commission (Lord Davidson) Trades Union Congress Young Solicitors Group INDIVIDUALS S Bradbury 192
APPENDIX C Persons and organisations who commented on the Supplementary Consultation Paper Consultation took place in 1995. The descriptions of consultees may have altered since then. GOVERNMENT DEPARTMENTS P K J Thompson, Solicitor to the Departments of Health and Social Security Treasury Solicitor JUDICIARY AND PRACTIONERS (1) Judiciary Mr Justice Aldous Lord Justice Auld Judge Michael Baker Mr Justice Bell Sir Thomas Bingham MR Mr Justice Blofeld Sir Wilfred Bourne Lord Justice Simon Brown Mr Justice Buxton Council of Her Majesty’s Circuit Judges Sir Michael Davies Sir Maurice Drake Mr Justice French Mr Justice Garland Mr Justice Gatehouse Lord Justice Peter Gibson John Hicks QC, Official Referee Mr Justice Hidden Lord Justice Hirst Mr Justice Jacob Mr Justice Johnson Mr Justice Jowitt Mr Justice Kay Lord Lloyd of Berwick Sir Michael Kerr Lord Keith of Kinkel Mrs A B Macfarlane, Master of the Court of Protection Lord Justice Millett Mr Justice Morland Lord Nicholls Mr Justice Potts Lord Justice Stuart-Smith Lord Steyn Lord Justice Swinton Thomas Lord Justice Rose Sir Richard Rougier Mr Justice Tuckey Mr Justice Waller Mr Justice Wright 193
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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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(24) our draft Bill should lay down
Page 141 and 142: 1.141 In our view, this is necessar
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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
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Page 155 and 156: (c) Implications of the adoption of
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Page 159 and 160: conduct. 756 Although it has consis
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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
Page 175 and 176: award to be covered by insurance, t
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 and 190: MICHAEL SAYERS, Secretary 11 Septem
Page 191: Nigel Ley Harvey McGregor QC Tim Ow
Page 195 and 196: Steve Hedley John Hodgson L Hoyano
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