Aggravated, Exemplary and Restitutionary ... - Law Commission

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