Aggravated, Exemplary and Restitutionary ... - Law Commission

egarded as the absolute maximum, involving directly officers of at
least the rank of superintendent. 508
1.179 It is not clear what the broader impact of Thompson v MPC will be. The guidance
was expressly directed only at the torts of false imprisonment and malicious
prosecution, and more particularly, to claims where those torts are committed by
the police. It was an understandable response to the proliferation of actions
against that category of defendant, which involved, where successful, everincreasing
sums of damages. But given this precedent, one might anticipate similar
guidance being offered in the future, in categories of claim where similar
‘pressures’ arise.
(iii) The relevance of ‘substitute’ awards
1.180 A final possible source of guidance is appellate ‘substitute’ 509
awards. At present it
is not wholly clear how far this category of award can be utilised by a trial judge, in
guiding juries.
1.181 Although reference to previous jury awards remains impermissible at present, it
has been said that ‘substitute’ awards made by the Court of Appeal under section
8(2) of the Courts and Legal Services Act 1990 and Rules of the Supreme Court,
Order 59, rule 11(4), “stand on a different footing”. 510
Those awards can be
referred to juries. But Rantzen v MGN Ltd 511
only involved a compensatory award.
Thus it is unclear how far the same reasoning also extends to ‘substitute’ exemplary
damages awards. One difficulty is that a ‘substitute’ exemplary award cannot
reliably be viewed in isolation as an indication of the sort of sum which a court has
thought to be appropriate to punish a defendant. An exemplary award must
necessarily represent the balance, on a particular set of facts, between the
compensatory sum and the minimum sum necessary to punish the defendant; as a
result, it cannot be considered independently of the compensatory sum.
Nevertheless, it would be surprising if ‘substitute’ exemplary awards, of the sort
made by the Court of Appeal in John v MGN Ltd 512
or Thompson v MPC, 513
are not
taken by practitioners at the very least to establish a benchmark for exemplary
awards in the future.
1.182 However, section 8 ‘substitute’ awards will only be truly useful as guidance if there
is a substantial body of appellate decisions making them; 514
and if the approach in
508 [1997] 3 WLR 403, 418A-B.
509 It seems that reference may be made, not just to awards which the Court of Appeal in fact
substitutes for jury awards, but also to jury awards which are approved by the Court of
Appeal: see John v MGN Ltd [1997] QB 586, 612C, per Sir Thomas Bingham MR,
agreeing with the ruling in Rantzen v MGN Ltd [1994] QB 670 that “reference may be
made to awards approved or made by the Court of Appeal” (emphasis added).
510 [1994] QB 670, 694B.
511 [1994] QB 670.
512 [1997] QB 586.
513 [1997] 3 WLR 403.
514 For similar observations on the utility of ‘substitute’ awards in defamation actions, see John
v MGN Ltd [1997] QB 586, 612C-E, per Sir Thomas Bingham MR, observing that a
framework of substitute awards will “not be established quickly” and that in the five years
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