Aggravated, Exemplary and Restitutionary ... - Law Commission

unlawful discrimination on grounds of sex, race or disability, 361
and wrongs
consisting of breach of Community law which English law conceptualises as civil
liability for breach of statutory duty. 362
Indeed, any wrong which arises under an
Act coming into force after Rookes v Barnard must inevitably fail the cause of
action test, so that exemplary damages will be unavailable unless they are expressly
authorised by statutory provision. 363
And notwithstanding recent dicta, 364
it would
seem that the tort of misfeasance in a public office also fails the cause of action
test.
1.110 There is no clear authority as to whether exemplary damages are available where
the defendant has committed an equitable wrong, such as breach of fiduciary duty
or breach of confidence. Damages of any sort, as opposed to the equitable
remedies of compensation or an account of profits, are unusual in equitable
actions. 365
In the absence of any authority prior to AB v South West Water Services
Ltd, 366
it would seem that it is not presently possible to recover exemplary damages
for an equitable wrong.
1.111 There are some cases in which the courts have suggested that exemplary damages
might be awarded under an undertaking in damages given by a plaintiff to the
court as a condition of the granting of interlocutory relief. In Digital Equipment
Corporation v Darkcrest 367
Falconer J suggested that if an injunction was obtained
fraudulently or maliciously, the defendant might be awarded exemplary damages
under the undertaking. And in Columbia Picture Industries Inc v Robinson 368
Scott J
thought that solicitors executing an Anton Piller order would be officers of the
court, and could come within category 1 if they acted in an oppressive or excessive
361 The Sex Discrimination Act 1975, Race Relations Act 1976 and Disability Discrimination
Act 1995, were obviously not enacted before 1964. Cf, in particular, Bradford City
Metropolitan Council v Arora [1991] 2 QB 507, in which exemplary damages were awarded
for sex and race discrimination, and no point was taken that such damages could be given
because the statutory torts were created after 1964. In AB v South West Water Services Ltd
[1993] QB 507 the Bradford case was treated as having been decided per incuriam. See now
Deane v Ealing LBC [1993] ICR 329.
362 This is the characterisation currently preferred by English courts of a liability to pay
damages for breach of a directly effective provision of Community law (such as Article 86
EC), and a Member State’s liability to pay damages for breach of Community law (eg
failure to implement a directive, or defective implementation of a directive) under the
principles of state liability laid down by the European Court of Justice: see paras 4.52 and
5.66 below. See, in particular, R v Secretary of State for Transport, ex p Factortame Ltd (No
5), The Times 11 September 1997 (QBD, Divisional Court), which is discussed at paras
4.52-4.54 and 5.69 below.
363 Accordingly, if and when the European Convention on Human Rights is incorporated into
domestic law by an Act of Parliament, exemplary damages will not be available (in the
absence of express statutory authorisation) for any wrong which the incorporating Act
creates.
364 See R v Secretary of State for Transport, ex p Factortame Ltd (No 5), The Times 11 September
1997, criticised in para 4.54, n 120 below.
365 Cf the position in Commonwealth jurisdictions, discussed at para 5.54 below.
366 [1993] QB 507.
367 [1984] Ch 512, 516G-H, citing Smith v Day (1882) 21 ChD 421, 428, per Brett LJ.
368 [1987] Ch 38, 87D-F.
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