Aggravated, Exemplary and Restitutionary ... - Law Commission

(6) Multiple plaintiffs
1.165 Very little attention has been paid by English and Commonwealth courts 471
to
solving the difficult problems that are raised by ‘multiple claimants’ to exemplary
damages - in particular the potential for ‘multiple punitive liability’ arising out of a
single act or course of conduct. It has already been seen that on at least one
occasion an English court considered these problems to be so serious as to
constitute a valid reason for refusing to make any exemplary award at all. 472
1.166 In Riches v News Group Newspapers Ltd 473
it was decided that, if two or more
plaintiffs are to be awarded exemplary damages in joint proceedings against a
single defendant, the court must determine a single sum of exemplary damages
which is appropriate punishment for the defendant’s conduct. This sum should
then be divided equally amongst the successful plaintiffs. Although the fact that
the conduct affects more than one person may justify an increase in the
punishment inflicted, the limiting factor on the award is the culpability of the
defendant’s conduct.
1.167 The courts do not yet seem to have considered what should happen if one or more
plaintiffs do not participate in the first case to be adjudicated; the joint proceedings
in Riches look to have involved all potential ‘multiple claimants’. One possible view
is that no further exemplary award is possible, and, further, that any plaintiffs who
do not participate in the first such case to be adjudicated have no legal entitlement
to share in any award that was made (a ‘first past the post takes all’ rule).
(7) The plaintiff’s conduct
1.168 The conduct of the plaintiff may be taken into account when deciding what sum
to award as exemplary damages. 474
A judge is entitled to direct the jury to this
effect. 475
The plaintiff’s conduct is relevant, however, only if it was a cause of the
offending behaviour. 476
Thus provocative conduct which results in a wrongful
arrest may lead to a reduced award of exemplary damages. The reason is that
such conduct will usually reduce the impropriety of the defendant’s reaction. 477
In
contrast, the plaintiff’s non co-operation with a complaints procedure is no ground
for making a reduced award. 478
471 S M Waddams, The Law of Damages (2nd ed, 1991), para 11.430. Cf the position in the
United States of America: see D B Dobbs, Law of Remedies (2nd ed, 1993) § 3.11(8), pp
336-341 and para 5.160, nn 177 and 178 below.
472 See the discussion of AB v South West Water Services Ltd [1993] QB 507 at para 4.47 above.
473 [1986] QB 256.
474 See also para 4.48 above.
475 Bishop v MPC, The Times 5 December 1989. It is arguable that the Law Reform
(Contributory Negligence) Act 1945 applies to such cases.
476 Thompson v MPC [1997] 3 WLR 403, 419C.
477 S M Waddams, The Law of Damages (2nd ed, 1991) para 11.450.
478 In Thompson v MPC [1997] 3 WLR 403, 419B-C, the Court of Appeal opposed any
reduction in the award of exemplary damages made to a plaintiff on the grounds of his or
her refusal to co-operate in the police complaints procedure:
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