Aggravated, Exemplary and Restitutionary ... - Law Commission

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