Aggravated, Exemplary and Restitutionary ... - Law Commission

1.123 In Archer v Brown 382
the punishment already exacted by the criminal courts was
very arguably treated as sufficient alone to bar an exemplary award. Peter Pain J
decided not to award exemplary damages against a defendant who had already
been convicted and imprisoned in respect of a corresponding criminal offence.
The proposition on which the judge relied, in the absence of authority, was a very
broad one which did not raise any question as to the sufficiency of the criminal
punishment. This was that a “man should not be punished twice for the same
offence”:
[W]hat seems to put the claim [to exemplary damages] out of court is
the fact that exemplary damages are meant to punish and the
defendant has been punished. Even if he wins his appeal he will have
spent a considerable time in gaol. It is not surprising that there is no
authority as to whether this provides a defence, since there is no direct
authority as to whether exemplary damages can be given in deceit. I
rest my decision on the basic principle that a man should not be
punished twice for the same offence. Since he has undoubtedly been
punished, I should not enrich the plaintiff by punishing the defendant
again. 383
1.124 Nevertheless, Archer v Brown is not an unassailable authority for the proposition
that a court will refuse an award of exemplary damages whenever a defendant has
already been punished by a criminal court for the conduct in question. In Archer v
Brown the defendant had already spent a “considerable time” in prison, and would
spend even more time in prison if an appeal against his sentence failed.
Imprisonment is obviously a very severe form of punishment. Accordingly it is
possible that Archer v Brown is consistent with the court having a discretion to
refuse an award of exemplary damages, which Peter Pain J exercised in the
circumstances, because, in view of the severity of the criminal punishment exacted,
no further civil punishment was necessary or fair.
1.125 Another important decision is AB v South West Water Services Ltd. 384
The Court of
Appeal gave as one, albeit secondary, reason for striking out the claim to an award
of exemplary damages, the “conviction and fine” of the defendants. No reference
was made to the size and sufficiency of the fine: the Court of Appeal appeared to
be content that the defendant had been criminally punished. And because the
proceedings were striking out proceedings, the court must have been convinced
that it was a “clear and obvious” case, or one which was “doomed to fail”. 385
If so,
it is arguable that the court considered that there was no scope for argument about
the sufficiency of the punishment that was exacted by the criminal law. The
relevant passage proceeds as follows:
382 [1985] 1 QB 401.
383 [1985] 1 QB 401, 423G-H.
384 [1993] QB 507.
385 [1993] QB 507, 516C-E. See also Devonshire & Smith v Jenkins, noted at pp 31-32 of
Arden & Partington on Quiet Enjoyment (3rd ed, 1990), in which the court declined to award
exemplary damages on the grounds, inter alia, that the defendant already had to pay a fine
for substantially the same deeds.
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