Aggravated, Exemplary and Restitutionary ... - Law Commission

1.135 On the other hand, it has been said in Holden v Chief Constable of Lancashire 403
that
the absence of ‘aggravating factors’ in the defendant’s conduct is relevant within
category 1 in deciding “whether or not to award such damages, and, if so, how
much”. 404
The Court of Appeal considered this to be an important limitation on
the otherwise overbroad proposition that any unconstitutional act by a servant of
government made an exemplary damages award possible in law. Sir John Arnold P
emphasised that:
... the circumstance that a case comes within a category does not make
it follow as night the day that exemplary damages will be awarded. It
merely leaves it open to the jury to award exemplary damages in such
cases ... 405
Accordingly, if the defendant acted on the basis of an honest or mistaken belief or
in good faith, the jury or the court might exercise its discretion to decline to make
an exemplary damages award. 406
(4) The remedial requirements of European Community law
1.136 English courts have occasionally, albeit rarely, faced arguments that European
Community law requires them to award exemplary or punitive damages for
breaches of Community law which are actionable by individuals in national
courts. 407
The traditional starting-point has been that in the absence of
Community provision, the nature and extent of remedies which are available for
such infringements are generally matters for national law to decide. 408
However,
national courts and legislatures are not entirely free to award whatever remedies (if
any) they wish. The European Court of Justice has laid down several general
principles which national remedies are required to observe, which can significantly
constrain (or sometimes even dictate) a national legal system’s choice of
remedies. 409
In particular, the national remedies available for breach of a
Community law right must not be less favourable than those available for similar
claims or causes of action founded on domestic law, and must secure effective
protection for the Community law right.
403 [1987] QB 380.
404 [1987] QB 380, 388D-E, per Purchas LJ.
405 [1987] QB 380, 389B-C, per Sir John Arnold P.
406 See, eg, Simper v MPC [1982] CLY 3124; Kay v James, 21 April 1989 (unreported, CA).
Cf Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 135, 159.
407 Those are breaches of directly effective provisions of Community law (such as Article 86
EC) and breaches of Community law by Member States which attract an obligation to pay
compensation under the principles of ‘state liability’ formulated in, in particular, C-6 &
9/90 Francovich and Bonifaci v Italy [1991] ECR I 5357 and C-46 & 48/93 Brasserie du
Pecheur SA v Germany; R v Secretary of State for Transport, ex p Factortame Ltd [1996] QB
404.
408 See, for example, C-33/76, Rewe-Zentralfinanz eG and Rewe-Zentral AG v
Landwirtschaftskammer fur das Saarland [1976] ECR 1989.
409 See generally C Lewis, Remedies and the Enforcement of European Community Law (1996)
Chapter 5, contrasting the “traditional approach” of the European Court of Justice with the
current approach.
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