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