Aggravated, Exemplary and Restitutionary ... - Law Commission

an aspect of the case which made exemplary damages inappropriate. The
underlying reason is that where there is a class of plaintiffs, practical problems
arise with regard to the assessment and apportionment of exemplary damages. If
existing actions have not been consolidated, or potential causes of action have not
yet accrued, the court is faced with the question of how to assess exemplary
damages if it is not aware of the full extent of the defendant’s wrongdoing or of
how many other claims will be made, in other proceedings, for exemplary damages
in respect of the defendant’s conduct. The court is also faced with the question of
how to apportion the exemplary award between the plaintiffs and potential
plaintiffs. These may, however, be regarded simply as raising problems of
assessment, and not as problems which completely rule out exemplary damages
awards in multiple plaintiff cases. 397
(e) The plaintiff’s conduct
1.132 The plaintiff’s conduct may serve to exclude exemplary damages altogether. A
good example is where the plaintiff provoked the wrongful action by his or her
own conduct. 398
Or alternatively, as we shall see below, such conduct may be a
reason for reducing any sum that is awarded. 399
(f) The defendant’s good faith
1.133 The ‘good faith’ of the defendant may be a reason which justifies a court refusing
to make any exemplary damages award at all. Or alternatively, as we shall see
below, it may be a reason for awarding a lower sum than would otherwise be
awarded. 400
1.134 It is a necessary precondition of category 2 cases that the defendant should have
acted in the knowledge that, or reckless as to whether, what he or she was doing
was wrongful. As a result, there is no scope for ‘good faith’ as a factor relevant to
the availability or the assessment of exemplary damages awards. In contrast, it
would appear that the defendant’s behaviour in committing the wrong need not be
‘exceptional’ in order to bring the case within category 1. 401
In Huckle v Money 402
the court refused to upset an award of £300 where the plaintiff had been kept in
custody for about six hours, but the defendant “used him very civilly by treating
him with beef-steaks and beer”. It would appear, therefore, that the wrongful
arrest by the defendant servant of government was thought sufficient in itself to
justify an exemplary award.
397 See paras 4.81-4.83 below. See, analogously, paras 3.77-3.81 above.
398 See, eg, Ewing v Vasquez 7 May 1985 (unreported, CA) (tenant being difficult to live with);
Holden v Chief Constable of Lancashire [1987] QB 380, 388D-E (plaintiff acting suspiciously,
leading to wrongful arrest).
399 See para 4.84 below.
400 See para 4.85 below.
401 Cf aggravated damages. See paras 2.4 and 2.6 above.
402 (1763) 2 Wils KB 205, 95 ER 768.
69