Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
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Thompson v MPC achieves its aims, that development will be much less likely. The<br />
reason is that Thompson-type guidance is designed to reduce the number of jury<br />
awards which are appealed against, by avoiding the risk of ‘excessive’ jury awards.<br />
And if the number of appeals decline, so should the number of awards which are<br />
‘substituted’ on appeal. Lord Woolf MR observed:<br />
To not provide juries with sufficient guidance to enable them to<br />
approach damages on similar lines to those which this court will adopt<br />
will mean that the number of occasions this court will be called on to<br />
intervene will be undesirably frequent. This will be disadvantageous to<br />
the parties because it will result in increased costs <strong>and</strong> uncertainty. It<br />
will also have adverse consequences for the reputation of the jury<br />
system. It could be instrumental in bringing about its demise. 515<br />
3. MISCELLANEOUS ISSUES<br />
(1) St<strong>and</strong>ard of proof<br />
1.183 In John v MGN Ltd 516<br />
the Court of Appeal stated that the st<strong>and</strong>ard of proof which<br />
applies to claims to exemplary damages is the civil <strong>and</strong> not the criminal<br />
st<strong>and</strong>ard. 517<br />
Prima facie the civil st<strong>and</strong>ard is a different, lower st<strong>and</strong>ard: viz, proof<br />
on the balance of probabilities. However, it has long been apparent that, especially<br />
in cases involving allegations of criminal conduct in civil proceedings, clearer proof<br />
may be required before a court or jury is entitled to find that proof on the balance<br />
of probabilities has been established. 518<br />
This might be regarded as an inherent <strong>and</strong><br />
inevitable flexibility which exists whatever st<strong>and</strong>ard of proof is formally chosen.<br />
Cross & Tapper on Evidence states:<br />
... there are no more than two st<strong>and</strong>ards of proof recognised by the<br />
law, though allowance must be made for the fact that some<br />
occurrences are antecedently more probable than others, <strong>and</strong> the<br />
consequences of some decisions are more serious than others ... For<br />
these reasons prosecutors on the more serious criminal charges or<br />
those carrying graver consequences, <strong>and</strong> plaintiffs in some civil cases,<br />
have higher hurdles to surmount than when they are making less<br />
serious allegations or those with more trivial consequences. 519<br />
1.184 In John v MGN Ltd Sir Thomas Bingham MR appeared to accept this sort of<br />
analysis:<br />
But a jury should in our judgment be told that as the charge is grave,<br />
so should the proof be clear. An inference of reprehensible conduct<br />
<strong>and</strong> cynical calculation of mercenary advantage should not be lightly<br />
since the power had come into force, there had been only three cases in which the Court of<br />
Appeal had itself selected the appropriate level of award.<br />
515 [1997] 3 WLR 403, 414G-H.<br />
516 [1997] QB 586.<br />
517 [1997] QB 586, 619B.<br />
518 See, in particular, Hornal v Neuberger Products Ltd [1957] 1 QB 247 (CA) <strong>and</strong>, in a different<br />
context, Khawaja v Secretary of State for the Home Department [1984] AC 74.<br />
519 Cross & Tapper on Evidence (8th ed, 1995) p 159.<br />
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