Aggravated, Exemplary and Restitutionary ... - Law Commission

(8) The defendant’s good faith
1.169 The absence of ‘aggravating features’ is relevant to the quantum of an exemplary award
under category 1, as well as to the question whether such an award should be made at
all - as we have already seen. 479
Accordingly, a wrong committed in good faith or under
an honest mistake may justify a reduced award of exemplary damages.
(9) Control and guidance of the jury
1.170 Where the trial is by jury, 480
awards of exemplary damages are assessed by the jury.
The jury has traditionally been given little guidance as to how to reach an
appropriate exemplary sum. 481
But in an effort to curb excessive jury damages
awards, the Court of Appeal has increasingly moved away from this position, and
has displayed a greater readiness to exercise control over jury assessment of
damages in two distinct forms. The first is by is by intervening and substituting for
the jury award an award of its own. The second is by permitting trial judges to
give guidance to juries on the assessment of damages, compensatory and
exemplary; such guidance may be formulated by the Court of Appeal, or derived
from some other source. 482
These developments warrant close scrutiny.
(a) Appellate control of jury awards
1.171 The first set of developments concerns the extent of appellate court intervention in
jury assessments. Prior to 1990 appellate court intervention was very limited, but
this was to some extent justified by the limited powers of the appellate court.
Such a court could only quash an excessive award, and could not substitute one of
its own; it would then be left to yet another jury to determine the appropriate
sum. 483
But this position was changed in 1990 by section 8(2) of the Courts and
It is highly desirable that complainants should co-operate in disciplinary
investigations but they are not legally obliged to do so. If they are not sufficiently
public-spirited to do so, this cannot be held against them in law so as to reduce
the amount payable when assessing the compensation to which they are entitled.
Exemplary damages are awarded so as to punish the defendant. We have already
referred to the circumstances in which the existence of disciplinary proceedings is
relevant in determining whether to make any award of exemplary damages. If the
jury decide an award is necessary then the amount is assessed on a consideration
of the conduct for which the defendants are responsible which makes the award
of exemplary damages appropriate. The plaintiff’s conduct is here relevant only if
it was a cause of the offending behaviour.
479 Holden v Chief Constable of Lancashire [1987] QB 380, 388D-E. See paras 4.49-4.51 above.
480 Supreme Court Act 1981, s 69, and para 4.57 above.
481 In John v MGN Ltd [1997] QB 586 Sir Thomas Bingham MR observed that “[t]he
authorities give judges no help in directing juries on the quantum of exemplary damages”
(at 619E). And more recently, in an extended consideration of the developing law on
guidance to juries, Lord Woolf MR described the amount of guidance which could be given
in the past as “extremely limited”: Thompson v MPC [1997] 3 WLR 403, 409E.
482 For example, the Judicial Studies Board, Guidelines for the Assessment of General Damages in
Personal Injury Cases (3rd ed, 1996).
483 See, in particular, Lord Reid’s criticisms in Broome v Cassell [1972] AC 1027, 1087E-F,
which were cited by Lord Woolf MR in Thompson v MPC [1997] 3 WLR 403, 411C-D:
... [there is] no effective appeal against sentence. All that a reviewing court can
do is to quash the jury’s decision if it thinks the punishment awarded is more
than any twelve reasonable men could award. The court cannot substitute its
82