Aggravated, Exemplary and Restitutionary ... - Law Commission

“lowered”. 436
Appellate courts should thus be more ready to find a jury award
“excessive”, and so more often exercise their statutory power to substitute for that
award a lower award of their own.
1.149 The lack of guidance which could be given to juries by trial judges on the
assessment of damages also caused concern in Rantzen. Article 10(2) of the
Convention requires that any restrictions on the exercise of the right to freedom of
expression should be “prescribed by law”. The European Court of Human Rights
has held that:
a norm cannot be regarded as a ‘law’ unless it is formulated with
sufficient precision to enable the citizen to regulate his conduct. 437
The unguided discretion of the jury to assess damages in actions for defamation
arguably breached this requirement, and the Court of Appeal in Rantzen clearly
considered that Article 10(2) did require that the jury should be given concrete
guidance in assessing those damages. Only then would the restriction on freedom
of expression - created by jury-assessed defamation awards - be ‘prescribed by
law’. It was therefore held that trial judges could refer juries to previous awards
made by the Court of Appeal in the exercise of its powers under section 8 of the
Courts and Legal Services Act 1990 and Rules of the Supreme Court, Order 59,
rule 11(4). 438
It is unclear how far this approach can also be applied to ‘substitute’
exemplary damages awards; the matter was not expressly considered by the
court. 439
No reference is, however, to be made to awards made by juries in
previous cases: no norm or standard to which future reference could be made had
been established by that category of awards, for they were themselves assessed
with only minimal judicial guidance. 440
1.150 In John v Mirror Group Newspapers Ltd 441
the Court of Appeal also elaborated a
limitation, which it applied specifically to exemplary damages, with reference to
Article 10 of the Convention. Exemplary damages are “analogous to a criminal
penalty” so that:
... principle requires that an award of exemplary damages should never
exceed the minimum sum necessary to meet the public purpose
436 [1994] QB 670, 690G-H. According to the Court of Appeal, the question became: “Could
a reasonable jury have thought that this award was necessary to compensate the plaintiff
and to reestablish his reputation?”. Previous formulations were higher. For example: “the
damages are so excessive that no twelve men could reasonably have given them” (Praed v
Graham (1889) 24 QBD 53, 55, per Lord Esher MR); “it is out of all proportion to the facts
or such that twelve reasonable men could not have made such an award” (Lewis v Daily
Telegraph Ltd [1963] 1 QB 340, 380, per Holroyd Pearce LJ).
437 The Sunday Times v The United Kingdom (1979-80) 2 EHRR 245, 271, para 49.
438 [1994] QB 670, 694B-C.
439 See further paras 4.96-4.97 below.
440 It is unclear whether this will change, even if the additional guidance which may be given to
juries after John v MGN Ltd [1997] QB 586 (see para 4.91 below) succeeds in reducing,
and increasing consistency between, jury awards for defamation: see John v MGN Ltd
[1997] QB 586, 611H-612B, per Sir Thomas Bingham MR.
441 [1997] QB 586.
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