Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
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enforce their rights; in contrast, victims may have little or no control over public<br />
prosecutions.<br />
(2) Supplementary Consultation Paper<br />
1.13 After the responses to the Consultation Paper were analysed, we found that the range<br />
of responses was so varied that we were left unclear as to where the consensus of<br />
opinion lay regarding the future of exemplary damages. We therefore decided to issue<br />
a supplementary consultation paper, primarily to those who had already submitted<br />
responses.<br />
1.14 The Supplementary Consultation Paper asked consultees to choose between three<br />
approaches to reform. These were as follows:<br />
Option 1: the ‘Expansionist Model’<br />
The availability of exemplary damages would be exp<strong>and</strong>ed so that they<br />
could be awarded for any tort or equitable wrong (but not for any breach<br />
of contract) that is committed with, or accompanied or followed by<br />
conduct which evinces, a deliberate <strong>and</strong> outrageous disregard of the<br />
plaintiff’s rights.<br />
Option 2: the ‘Abolitionist Model’<br />
<strong>Exemplary</strong> damages would be abolished, but this reform would be<br />
accompanied by provisions designed to:<br />
(a) ensure full compensation for the plaintiff’s mental distress<br />
<strong>and</strong> for any injury to his or her feelings; <strong>and</strong><br />
(b) achieve full recognition of ‘restitutionary damages’, requiring<br />
the defendant to give up gains made through a tort or<br />
equitable wrong committed with a deliberate disregard of the<br />
plaintiff’s rights.<br />
Option 3: the ‘Hybrid Model’<br />
This would be the same as option 2, except that exemplary damages would<br />
continue to be available for torts which are committed with a deliberate<br />
<strong>and</strong> outrageous disregard of the plaintiff’s rights by servants of the<br />
government in the purported exercise of powers entrusted to them by the<br />
state, <strong>and</strong> which are capable in addition of amounting to crimes.<br />
1.15 There were 146 responses to the Supplementary Consultation Paper, of which 17<br />
(11.6%) favoured none of the options. These were re-allocated to the option which<br />
most closely fitted their views. After re-allocation, the distribution of responses was:<br />
Option 1 (‘Expansionist Model’) 49%<br />
Option 2 (‘Abolitionist Model’) 28%<br />
Option 3 (‘Hybrid Model’) 23%<br />
It can be seen from this that, adding together the responses favouring options 1 <strong>and</strong> 3,<br />
72% of consultees favoured the retention of exemplary damages.<br />
96