Aggravated, Exemplary and Restitutionary ... - Law Commission

criminal law. The practical consequence of abolishing exemplary damages would be
that a sharper, cleaner distinction could be drawn between the civil law and the
criminal law.
1.21 On this view, exemplary damages are in truth a form of fine and several distinctive
features of civil, as opposed to criminal, punishment appear as deficiencies:
(1) The defendant against whom exemplary damages are awarded is deprived of
the various evidential and procedural safeguards which are ordinarily afforded
to defendants in jeopardy of criminal punishment. 560
In particular:
(a) the rules as to the admissibility of evidence are less restrictive in civil
cases;
(b) it is unheard of in criminal cases, and contrary to all attempts to
produce consistency in sentencing, for the jury not only to determine
guilt but also the appropriate punishment;
(c) the standard of proof in civil cases is the lower standard of proof on the
‘balance of probabilities’.
(2) The monetary punishment for the anti-social behaviour should be payable to
the state and not to the individual plaintiff; thus exemplary damages, which are
payable to the individual plaintiff, are often criticised for leaving an undeserved
windfall in the hands of the plaintiff. 561
It is significant that in Riches v News
Group Newspapers Ltd 562
the jury sent the judge a note to say that they had in
mind to award exemplary damages but wished to know whether it was possible
to award them otherwise than to the plaintiffs, for example to charity. The
judge, of course, replied in the negative. 563
(3) Defendants should not be placed in jeopardy of double punishment in respect
of the same conduct, yet this would be the result if a defendant could be liable
to pay both a criminal fine following conviction in the criminal courts and an
exemplary damages award after an adverse decision in the civil courts.
(4) One cannot generally insure against liability to pay a criminal fine. Likewise
one ought not to be able to insure against liability for exemplary damages, yet it
appears that one can do so.
560 See Lord Reid’s objections to the assessment by juries of exemplary awards in Broome v
Cassell [1972] AC 1027, 1087C-F, quoted at para 4.57 above.
561 See, eg, Broome v Cassell [1972] AC 1027, 1086B-C (per Lord Reid), 1126D, (per Lord
Diplock); AB v South West Water Services Ltd [1993] QB 507, 527E-F, 529A; Thompson v
MPC [1997] 3 WLR 403, 417H. See the discussion of the windfall argument at paras 4.73-
4.76 above.
562 [1986] QB 256.
563 See the Supreme Court Procedure Committee, Report on Practice and Procedure in
Defamation (1991) ch IV, para 9.
98