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