Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
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MR himself suggested figures to assist trial judges in determining an appropriate<br />
bracket of compensatory damages for the torts of malicious prosecution 502<br />
<strong>and</strong><br />
false imprisonment, 503<br />
albeit subject to the caveat that:<br />
circumstances can vary dramatically from case to case <strong>and</strong> ... these ...<br />
figures which we provide are not intended to be applied in a<br />
mechanistic manner. 504<br />
1.177 But however they are determined, the ‘brackets’ endorsed in Thompson v MPC <strong>and</strong><br />
John v MGN Ltd will be no more than ‘guidelines’: the jury should be told that<br />
everything depends on their assessment of the gravity of the injuries, that they are<br />
no more than guideline figures, <strong>and</strong> that it is for it alone to select an actual<br />
appropriate sum. It might be thought, however, that the existence of guidelines<br />
will facilitate ex post facto appellate control of jury awards. Even if the guideline<br />
brackets are not binding on a jury, they will represent figures which are perceived<br />
by the Court of Appeal or the trial judge to be proper in the general run of cases.<br />
It should therefore be easier to determine whether or not the sum awarded by the<br />
jury is excessive. 505<br />
(ii) ‘Brackets’ & guiding principles: assessing exemplary damages<br />
1.178 Very much more important for this paper is the fact that in Thompson v MPC 506<br />
the<br />
Court of Appeal formulated detailed guidance for juries assessing exemplary<br />
damages. It is sufficient to observe that it includes not only guiding principles, 507<br />
but also approximate minimum <strong>and</strong> ‘ceiling’ figures for use in actions against the<br />
police for false imprisonment <strong>and</strong> malicious prosecution. Thus,<br />
[w]here exemplary damages are appropriate they are unlikely to be less<br />
than £5,000. Otherwise the case is probably not one which justifies an<br />
award of exemplary damages at all. In this class of action the conduct<br />
must be particularly deserving of condemnation for an award of as<br />
much as £25,000 to be justified <strong>and</strong> the figure of £50,000 should be<br />
... because of the resemblance between the sum to be awarded in false<br />
imprisonment <strong>and</strong> ordinary personal injury cases, <strong>and</strong> because a greater number<br />
of precedents may be cited in this class of case than in a defamation action.<br />
502 [1997] 3 WLR 403, 416G-H.<br />
503 [1997] 3 WLR 403, 416D-G.<br />
504 [1997] 3 WLR 403, 416H.<br />
505 See Thompson v MPC [1997] 3 WLR 403, 414G-H.<br />
506 [1997] 3 WLR 403.<br />
507 Apart from well-established guidance such as the ‘if, but only if’ test, two important ‘new’<br />
principles of ‘restraint’ were stated by Lord Woolf MR. The first points out that, to the<br />
extent that ‘aggravated damages’ have already been given, they will have compensated the<br />
plaintiff for the injury he has suffered due to the oppressive or insulting behaviour of the<br />
defendant, <strong>and</strong> in doing so, inflicted a measure of punishment - albeit incidentally - on the<br />
defendant ([1997] 3 WLR 403, 417G). This proposition really just reinforces what is<br />
implicit in the ‘if, but only if’ test. The second states two important reasons for restraint:<br />
that is, that an award of exemplary is a ‘windfall’, <strong>and</strong> that where damages are payable out<br />
of police funds, the sum awarded may not be available to be expended (for example) by the<br />
police in a way which would benefit the public ([1997] 3 WLR 403, 417H). See paras 4.73-<br />
4.76 above.<br />
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