Aggravated, Exemplary and Restitutionary ... - Law Commission

should emphasise at the outset that we have derived enormous assistance from the
responses of the consultees to the two consultation papers.
3. OVERVIEW OF OUR RECOMMENDATIONS AND REASONING
(1) Aggravated damages
1.7 In Part II of this Report we review the present law on aggravated damages, and in
particular, the confusion that has surrounded their aims. Are they a punitive
measure of damages, like exemplary damages, or are they compensatory?
1.8 Our conclusion is that aggravated damages compensate the victim of a wrong for
mental distress (or ‘injury to feelings’) in circumstances in which that injury has
been caused or increased by the manner in which the defendant committed the
wrong, or by the defendant’s conduct subsequent to the wrong. 12
There is no
justification for the law recognising a punitive civil remedy that is both additional
to exemplary damages, and unconstrained by the severe constraints which the law
imposes on the availability of the latter. 13
The difficulties which uncertainty in this
area has caused in practice were recently highlighted in the Court of Appeal’s
decision in Thompson v MPC. 14
We discuss that decision in detail in Part II.
1.9 We think it vital to dispel such confusion once and for all. Our recommendations
aim to do so. We recommend that statute should clarify that aggravated damages
are concerned to compensate and not to punish the wrongdoer, 15
and further that,
wherever possible, the label ‘damages for mental distress’ should be used instead of
the misleading phrase ‘aggravated damages’. 16
Once it is appreciated that
aggravated damages are concerned with circumstances in which the victim of a
civil wrong may obtain compensation for mental distress which he or she has
suffered, a more coherent perception, and so development of, the law on damages
for mental distress should be possible. 17
(2) Restitutionary damages
1.10 In Part III of this Report we review the present law relating to the availability of
restitution for a wrong. We shall see that restitution is well-recognised for some
types of wrong, 18
but that its availability is disputed in relation to several others. 19
We shall also see that, where recognised, restitution will currently be effected by
12 See paras 2.1-2.2 and 2.40 below.
13 See para 2.40 below.
14 [1997] 3 WLR 403.
15 See paras 2.41-2.42, recommendation (1), and draft Bill, clause 13, below.
16 See paras 2.41-2.42, recommendation (2), and draft Bill, clause 13, below
17 See, in particular, para 2.43 below.
18 See Part III: section 2(1)(a) (proprietary torts, excluding intellectual property torts), at
paras 3.10-3.18 below; section 2(1)(b) (intellectual property torts), at paras 3.19-3.22
below; and section 2(2) (equitable wrongs), at paras 3.28-3.32 below.
19
See Part III: section 2(1)(c) (non-proprietary torts), at paras 3.23-3.27 below; and section
2(3) (breach of contract), at paras 3.33-3.37 below.
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