Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Create successful ePaper yourself
Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.
statutory wrongs if an award would be consistent with the policy of the statute<br />
under which the wrong arises. 31<br />
However, an award should be made only if the<br />
defendant’s conduct showed a deliberate <strong>and</strong> outrageous disregard of the plaintiff’s<br />
rights 32<br />
<strong>and</strong> the other remedies awarded would be inadequate to punish the<br />
defendant for his conduct. 33<br />
Furthermore, no award should usually be made,<br />
where the defendant has already been convicted of an offence involving the<br />
conduct which founds the claim to punitive damages. 34<br />
And the court should be<br />
required to take into account any other sanctions which may have been imposed,<br />
when deciding whether punitive damages are necessary, <strong>and</strong> therefore available. 35<br />
The court will retain a ‘safety-valve’ discretion to refuse punitive damages, where<br />
an award would otherwise be available under the above tests, if some exceptional<br />
factor exists which makes it proper in the circumstances to refuse an award. 36<br />
1.21 The decision about how much to award as punitive damages, where they have<br />
been held to be available, should also always be for a judge, never a jury. 37<br />
An<br />
award should not exceed the minimum necessary to punish the defendant for his<br />
conduct, <strong>and</strong> should be proportionate to the gravity of his wrongdoing. 38<br />
The<br />
judge should also be guided by a non-exhaustive statutory list of relevant factors. 39<br />
We anticipate that a body of precedent, judicial tariffs <strong>and</strong>/or guideline judgments<br />
would offer further guidance, in time. 40<br />
If a defendant would not be able to pay an<br />
award which is assessed in this way without undue hardship, then the court should<br />
select a lower, appropriate sum. 41<br />
1.22 Apart from these central recommendations, we make a number of additional ones.<br />
A claim to punitive damages should be specifically pleaded. 42<br />
The st<strong>and</strong>ard of<br />
proof should remain the civil st<strong>and</strong>ard of proof on the balance of probabilities. 43<br />
Liability to punitive damages should, in general, be ‘several’ only. 44<br />
However,<br />
vicarious liability should apply 45<br />
<strong>and</strong> insurance should be permitted. 46<br />
A claim for<br />
31 See paras 5.49-5.65, recommendation (19), <strong>and</strong> draft Bill, clause 3(3)-3(5), below.<br />
32 See paras 5.46-5.48, recommendation (18), <strong>and</strong> draft Bill, clause 3(6), below.<br />
33 See paras 5.99-5.102, recommendation (20), <strong>and</strong> draft Bill, clause 3(7), below.<br />
34 See paras 5.103-5.115, recommendation (21)(a), <strong>and</strong> draft Bill, clause 4(1), below.<br />
35 See paras 5.116-5.117, recommendation (21)(b), <strong>and</strong> draft Bill, clause 4(2), below.<br />
36 See paras 5.118-5.119 below.<br />
37 See paras 5.81-5.98, recommendation (17), <strong>and</strong> draft Bill, clause 2, below.<br />
38 See paras 5.120-5.122, recommendations (22)(a) <strong>and</strong> (22)(b), <strong>and</strong> draft Bill, clause 5(1)(a)<br />
<strong>and</strong> 5(1)(b), below.<br />
39 See paras 5.123-5.128, recommendation (23), <strong>and</strong> draft Bill, clause 5(2), below.<br />
40 See, in particular, our reasoning at paras 5.91-5.98 below; see also paras 4.86-4.98 below.<br />
41 See paras 5.135-5.141, recommendations (26)-(28), <strong>and</strong> draft Bill, clause 6, below.<br />
42 See paras 5.133-5.134, recommendation (25), <strong>and</strong> draft Bill, clause 3(2), below.<br />
43 See paras 5.231-5.233, recommendation (41), <strong>and</strong> draft Bill, clause 10, below.<br />
44 See paras 5.186-5.203, recommendation (34), <strong>and</strong> draft Bill, clause 8(1), below. Cf paras<br />
5.204-5.205.<br />
45 See paras 5.209-5.230, recommendations (37)-(40), <strong>and</strong> draft Bill, clauses 8(2)(a) <strong>and</strong> 11<br />
below.<br />
6