Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
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underlying such damages, that of punishing the defendant, showing<br />
that tort does not pay <strong>and</strong> deterring others. The same result is<br />
achieved by the application of article 10 ... 442<br />
1.151 The validity of these concerns about (non-)conformity with the Convention was<br />
confirmed by the decision of the European Court of Human Rights in Tolstoy<br />
Miloslavsky v United Kingdom, 443<br />
which was heard before Rantzen reached the<br />
Court of Appeal. The Court held that an award of £1.5 million in compensatory<br />
damages, in conjunction with the lack of adequate judicial safeguards at trial <strong>and</strong><br />
on appeal against disproportionately large awards at the relevant time, amounted<br />
to a violation of the defendant’s rights under Article 10. It is unclear how far the<br />
power of ‘substitution’ of jury awards introduced by section 8 of the Courts <strong>and</strong><br />
Legal Services Act 1990, 444<br />
as well as the approach in Rantzen to the exercise of<br />
that power by the Court of Appeal, have rectified these deficiencies. If they have,<br />
then arguably even a substantial award of exemplary damages by a jury would not,<br />
per se, infringe Article 10, because of the potential for ‘substitution’ on an appeal.<br />
However, the question of the legitimacy of exemplary damages awards as such -<br />
large or small - did not arise in Tolstoy, <strong>and</strong> the European Court of Human Rights<br />
was not called upon to consider whether they are “necessary in a democratic<br />
society ... for the protection of the reputation of others”. 445<br />
(2) Moderation<br />
1.152 In Rookes v Barnard 446<br />
Lord Devlin emphasised that exemplary awards are<br />
governed by a principle of ‘moderation’ or ‘restraint’. 447<br />
This was essentially an<br />
exhortation to courts to award lower, rather than higher, awards. Commonwealth<br />
authorities have similarly emphasised the need for caution. 448<br />
But it would appear<br />
that Lord Devlin was not wholly confident that the principle would sufficiently<br />
curb excessive awards:<br />
It may even be that the House may find it necessary to ... place some<br />
arbitrary limit on awards of damages that are made by way of<br />
punishment. Exhortations to be moderate may not be enough. 449<br />
(3) Wealth of the defendant<br />
1.153 When calculating the appropriate exemplary sum, it has been laid down that the<br />
court or jury should take into account the defendant’s capacity to pay. 450<br />
It would<br />
442 [1997] QB 586, 619F-G.<br />
443 (1995) 20 EHRR 442.<br />
444 See further paras 4.87-4.89 below.<br />
445 Article 10(2) of the European Convention on Human Rights.<br />
446 [1964] AC 1129.<br />
447 [1964] AC 1129, 1227-1228. See also para 4.66 above.<br />
448 See, for example, Donselaar v Donselaar [1982] 1 NZLR 97, 107, per Cooke J.<br />
449 Rookes v Barnard [1964] AC 1129, 1228.<br />
450 Rookes v Barnard [1964] AC 1129,1228, per Lord Devlin. Lord Devlin spoke of the<br />
“means of the parties”, but presumably the means of the plaintiff can only exceptionally (if<br />
ever) be relevant: that is, where they affect the culpability of the defendant’s behaviour.<br />
77