Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
Aggravated, Exemplary and Restitutionary ... - Law Commission
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(5) The criminal approach to vicarious liability, being narrower than the approach<br />
in tort, ought also to apply to exemplary damages. Yet the same rules appear<br />
to apply to exemplary as to compensatory damages. 564<br />
(6) The defendant’s criminal record probably ought to be, but appears not to be,<br />
relevant to decisions about both the availability <strong>and</strong> assessment of exemplary<br />
damages awards.<br />
(7) It appears objectionable that exemplary damages are only available if the<br />
plaintiff has pleaded them, as well as that plaintiffs have a discretion as to<br />
whether to execute a judgment for exemplary damages. It is difficult to see<br />
why a civil court should not be entitled to make an award of its own motion<br />
<strong>and</strong> should not have some way of enforcing an award, either of its own motion,<br />
or at the instance of another body with a public enforcement role, or by<br />
compelling plaintiffs to execute judgments.<br />
(8) In fixing the amount of exemplary damages, the court or jury should not award<br />
a sum which exceeds the statutory maximum fine for the same or similar<br />
conduct. And yet exemplary damages awards are assessed without any, or any<br />
overt, reference to the range of possible fines.<br />
(9) The ‘rule of law’ principle of legal certainty dictates that the criminalisation of<br />
conduct is in general properly only the function of the legislature in new cases;<br />
it further dictates that there is a moral duty on legislators to ensure that it is<br />
clear what conduct will give rise to sanctions <strong>and</strong> to the deprivation of liberty.<br />
Broadly-phrased judicial discretions to award exemplary damages ignore such<br />
considerations.<br />
(b) The principled case for retaining exemplary damages<br />
1.22 The principled case for retention begins with the proposition that civil punishment is a<br />
different type of punishment from criminal punishment; the conclusion drawn from<br />
this is that it is coherent to pursue the aims of punishment (retribution, deterrence,<br />
disapproval) through the civil law, in addition to the criminal law, <strong>and</strong> in a civil ‘form’<br />
which does not necessarily have to mimic the criminal ‘form’.<br />
1.23 Two distinctive features of civil punishment are relied on. The first concerns the locus<br />
st<strong>and</strong>i or entitlement to sue of complainants. Civil punishment is sought <strong>and</strong> enforced<br />
by individual victims of wrongdoing. In contrast, criminal punishment is sought by or<br />
on behalf of the state: even though an individual can bring a private prosecution, he or<br />
she will be regarded as acting on behalf of the state. The second concerns the stigma<br />
associated with criminal punishment. Criminal punishment carries a stigma that civil<br />
punishment does not: a crime is viewed by society as more serious, <strong>and</strong> one corollary<br />
of criminal punishment is a criminal record - with all the potential consequences for,<br />
for example, employment prospects, which that entails. Consequently, £10,000<br />
exemplary damages for assault would be less drastic than a £10,000 fine <strong>and</strong> criminal<br />
record for the same assault.<br />
564 See paras 4.102-4.103 above.<br />
99