Aggravated, Exemplary and Restitutionary ... - Law Commission

In the present case there is the further complication to which I have
already referred of the conviction and fine of the defendants. These
problems persuade me that there would be a serious risk of injustice to
the defendants in this case if an award of exemplary damages were to
be made against them. There is no injustice to the plaintiffs in refusing
to permit such an award ... 386
1.126 The risk of ‘double punishment’ does not arise where the conduct in respect of
which an exemplary damages award is sought is materially different from that for
which the defendant has already been punished in criminal proceedings.
Accordingly, there can be no objection to an exemplary damages award in such a
case. 387
In Asghar v Ahmed 388
the conduct in respect of which exemplary damages
were awarded occurred after the unlawful eviction in respect of which the
defendants had been convicted. The Court of Appeal upheld the award, observing
that the trial judge had expressly directed his mind to the fact that the defendant
had been fined in the Crown Court for the eviction, and that:
... there was a great deal more to the outrageous conduct which
followed the eviction which justified the judge’s finding that it was an
absolutely outrageous example of persecution by a landlord of a
tenant. 389
1.127 Where both criminal and civil proceedings are brought, the criminal disposition
will usually occur prior to the decision in the corresponding civil proceedings. A
civil court has the discretion to stay proceedings if it appears that justice between
the parties so requires. 390
This appears to enable a civil court, in an appropriate
case, to suspend civil proceedings until the criminal proceedings have been
concluded, or until such time as it is clear that they will end before the civil
proceedings come to trial. It should therefore be unusual for a civil court to have
to determine the availability or quantum of exemplary damages prior to the
conclusion of criminal proceedings. If they do, the civil court would generally have
to proceed on the basis that there will be no criminal conviction. But by analogy
with the Court of Appeal’s approach to the relevance of disciplinary proceedings,
it is arguable that a civil court might not do so, if:
there is clear evidence that such proceedings are intended to be taken
in the event of liability being established and that there is at least a
strong possibility of the proceedings succeeding. 391
386 [1993] QB 507, 527D-E. Cf 516A-C.
387 Asghar v Ahmed (1985) 17 HLR 25.
388 (1985) 17 HLR 25.
389 (1985) 17 HLR 25, 29, per Cumming-Bruce LJ.
390 See, in particular, section 49(3) of the Supreme Court Act 1981, which preserves the
inherent jurisdiction of the Court of Appeal or the High Court to stay proceedings before it.
For an example of a case considering the use of this jurisdiction where the concurrent
existence of civil and criminal proceedings could produce some form of unfairness - though
not the unfairness of ‘double punishment’ - see Jefferson Ltd v Bhetcha [1979] 1 WLR 898
(civil proceedings eroding the defendant’s ‘right of silence’ in criminal proceedings).
391 Thompson v MPC [1997] 3 WLR 403, 418H-419A.
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