Aggravated, Exemplary and Restitutionary ... - Law Commission

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