Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
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1.8 As regards the divide between the criminal <strong>and</strong> the civil law, it was claimed that, if<br />
an act warranted punishment, this was a matter for the criminal law or some other<br />
regulatory system. It was argued that deficiencies in the regulatory systems should<br />
be dealt with directly, by the amendment of those systems; they should not be<br />
patched up through the civil law. A further concern was that a person could be<br />
acquitted of a criminal offence, yet still be subjected to punishment by an award of<br />
exemplary damages.<br />
1.9 The arguments focusing on the greater appropriateness of other remedies pointed<br />
to a range of other remedies which could perform at least some of the functions<br />
which exemplary damages might be expected to perform. One of these arguments<br />
was that ‘restitutionary’ damages should be available to deal with any case where a<br />
defendant acted wrongfully with a view to making a profit. A second was that<br />
‘compensatory’ damages are adequate to take account of a plaintiff’s outraged<br />
feelings, insult <strong>and</strong> humiliation in the case of torts such as defamation, false<br />
imprisonment, malicious prosecution, assault <strong>and</strong> intimidation. A third <strong>and</strong><br />
alternative argument was that a ‘non-monetary’ remedy, such as a published<br />
declaration, could more appropriately serve to vindicate ‘personality’ rights: there<br />
is no connection between the desire to vindicate such rights <strong>and</strong> the institution of<br />
punishment.<br />
(ii) In favour of exemplary damages<br />
1.10 The main arguments in favour of exemplary damages responded, to a significant<br />
extent, to the same concerns, namely the divide between the civil <strong>and</strong> criminal law<br />
<strong>and</strong> the appropriateness of exemplary damages.<br />
1.11 Many consultees were not prepared to accept that any sharp distinction exists<br />
between the goals that may legitimately be pursued by the criminal law <strong>and</strong> the<br />
civil law: punishment, deterrence <strong>and</strong> the marking out of conduct for disapproval<br />
are legitimate functions of the civil law, as well as the criminal law.<br />
1.12 Many consultees also considered that exemplary damages perform useful <strong>and</strong><br />
important functions. On the one h<strong>and</strong>, some pointed to its value as essentially a<br />
supplementary device: viz, as a remedy for perceived deficiencies in the criminal<br />
law, the civil law <strong>and</strong> other regulatory systems. A deficiency in the criminal law<br />
was identified in relation to police cases: in such cases it is the civil law that bears<br />
the brunt of maintaining the rule of law; retribution <strong>and</strong> punishment must<br />
therefore, of necessity, have a part to play in this area also. Likewise some<br />
consultees pointed to public concern over the failure to bring criminals to trial, or<br />
to secure convictions. A deficiency in the civil law was identified in a different set<br />
of cases, in particular those in which powerful defendants are unaffected by the<br />
normal level of damages. Another was identified in the specific area of libel law: it<br />
was observed that media libels were often deliberately perpetrated for profit or<br />
hate, <strong>and</strong> self-regulation in this area had clearly failed. On the other h<strong>and</strong>, it was<br />
also thought that exemplary damages may have a distinctive role. In particular,<br />
individuals were thereby given an effective weapon with which they themselves can<br />
555 <strong>Aggravated</strong>, <strong>Exemplary</strong> <strong>and</strong> <strong>Restitutionary</strong> Damages (1993) Consultation Paper No 132,<br />
paras 6.8 <strong>and</strong> 8.7.<br />
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