Aggravated, Exemplary and Restitutionary ... - Law Commission

1.8 As regards the divide between the criminal and the civil law, it was claimed that, if
an act warranted punishment, this was a matter for the criminal law or some other
regulatory system. It was argued that deficiencies in the regulatory systems should
be dealt with directly, by the amendment of those systems; they should not be
patched up through the civil law. A further concern was that a person could be
acquitted of a criminal offence, yet still be subjected to punishment by an award of
exemplary damages.
1.9 The arguments focusing on the greater appropriateness of other remedies pointed
to a range of other remedies which could perform at least some of the functions
which exemplary damages might be expected to perform. One of these arguments
was that ‘restitutionary’ damages should be available to deal with any case where a
defendant acted wrongfully with a view to making a profit. A second was that
‘compensatory’ damages are adequate to take account of a plaintiff’s outraged
feelings, insult and humiliation in the case of torts such as defamation, false
imprisonment, malicious prosecution, assault and intimidation. A third and
alternative argument was that a ‘non-monetary’ remedy, such as a published
declaration, could more appropriately serve to vindicate ‘personality’ rights: there
is no connection between the desire to vindicate such rights and the institution of
punishment.
(ii) In favour of exemplary damages
1.10 The main arguments in favour of exemplary damages responded, to a significant
extent, to the same concerns, namely the divide between the civil and criminal law
and the appropriateness of exemplary damages.
1.11 Many consultees were not prepared to accept that any sharp distinction exists
between the goals that may legitimately be pursued by the criminal law and the
civil law: punishment, deterrence and the marking out of conduct for disapproval
are legitimate functions of the civil law, as well as the criminal law.
1.12 Many consultees also considered that exemplary damages perform useful and
important functions. On the one hand, some pointed to its value as essentially a
supplementary device: viz, as a remedy for perceived deficiencies in the criminal
law, the civil law and other regulatory systems. A deficiency in the criminal law
was identified in relation to police cases: in such cases it is the civil law that bears
the brunt of maintaining the rule of law; retribution and punishment must
therefore, of necessity, have a part to play in this area also. Likewise some
consultees pointed to public concern over the failure to bring criminals to trial, or
to secure convictions. A deficiency in the civil law was identified in a different set
of cases, in particular those in which powerful defendants are unaffected by the
normal level of damages. Another was identified in the specific area of libel law: it
was observed that media libels were often deliberately perpetrated for profit or
hate, and self-regulation in this area had clearly failed. On the other hand, it was
also thought that exemplary damages may have a distinctive role. In particular,
individuals were thereby given an effective weapon with which they themselves can
555 Aggravated, Exemplary and Restitutionary Damages (1993) Consultation Paper No 132,
paras 6.8 and 8.7.
95