Aggravated, Exemplary and Restitutionary ... - Law Commission

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(2) Barristers Nicholas Blake QC Christopher Clark QC Richard Clayton Kenneth Hamer Robert Hill Nicholas Lavender Nigel Ley Harvey McGregor QC Paul McGrath John McLinden Stephen Moriarty Tim Owen David Pannick QC 1 Pump Court (Robert Latham) Robert Reid QC Anthony Scrivener QC Michael Silverleaf Andrew Smith QC Marcus Smith Christopher Symons QC Nicholas Underhill QC (3) Solicitors Trevor Aldridge QC Peter Carter-Ruck, Peter Carter-Ruck & Partners T Cook, Bird & Bird R G Clinton, Farrer & Co D S Hooper, Biddle & Co Derek Lewis, Theodore Goddard Keith Schilling, Schilling & Lom R A Schillito, Oswald Hickson Collier Lovell White Durrant (A M Dimsdale Gill) A L H Willis, Flint Bishop & Barnett Nigel Taylor, Sinclair Roche & Temperley David B Thompson, Brian Thompson & Partners C Ettinger, Robin Thompson & Partners Ian Walker, Russell Jones & Walker ACADEMICS N H Andrews Professor H Beale Professor J Beatson Professor P Birks Professor R A Buckley Hazel Carty B A Childs Dr Gerhard Dannemann Professor A M Dugdale Dr Evelyn Ellis Professor D J Feldman Dr Julian Fulbrook Professor M P Furmston P R Ghandhi 194
Steve Hedley John Hodgson L Hoyano Richard James Professor J A Jolowicz Michael A Jones A P Le Sueur Professor Richard Lewis Professor B S Markesinis N McBride Professor E McKendrick John Murphy R O’Dair Professor A I Ogus K Oliphant D L Parry Professor M Partington Professor W V H Rogers Professor F D Rose Paul Skidmore Dr L D Smith Dr Steve Smith Professor Keith Stanton Professor Hans Stoll Professor R Taylor A Tettenborn G J Virgo Professor S M Waddams J A Weir ORGANISATIONS Association of British Insurers Association of Chief Police Officers Association of Insurance and Risk Managers in Industry and Commerce Ltd Association of Personal Injury Lawyers Automobile Association Cambridgeshire Constabulary The City of London Law Society Equal Opportunities Commission Equal Opportunities Commission for Northern Ireland General Council of the Bar, Law Reform Committee Health & Safety Executive Holborn Law Society Housing Law Practitioners’ Association Institute of Legal Executives Intellectual Property Lawyers Association The Law Society Liberty Lloyd’s of London London Solicitors Litigation Association Kensington Citizens Advice Bureau The Newspaper Society Police Federation of England and Wales Scottish Law Commission (Lord Davidson) 195
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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
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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
Page 147 and 148: (31) once punitive damages have bee
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
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 and 192: Nigel Ley Harvey McGregor QC Tim Ow
Page 193: APPENDIX C Persons and organisation
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