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Exemplary damages in the English law of tort

Published online by Cambridge University Press:  02 January 2018

P. R. Ghandhi
P. R. Ghandhi*
Affiliation:
University of Reading
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Extract

At common law, the primary remedy for a successful plaintiff in an action in tort is an award of damages. The plaintiff must be put in the position in which he was before the tort was committed so far as money can do this. In many actions the principle of restitutio in integrum is a sufficient guide to the quantum of damages. But, in other cases, for example, actions for damages for personal injuries or defamation, a highly subjective element is involved. Neither personal injury nor loss of reputation is easily convertible by the use of any yardstick into an exact monetary figure.

In some cases, the damages are said to be ‘at large’. This signifies that the award is not limited to the pecuniary loss that can be precisely proved. Where damages are ‘at large’, as they are, for example, in assault, false imprisonment or malicious prosecution, trespass and defamation, they may be conveniently divided into three separate elements. First, there is the compensation for the actual harm caused to the plaintiff by the defendant; in addition to any pecuniary loss specifically proved, the assessment will involve putting a monetary value on the physical hurt in assault, on curtailment of liberty in false imprisonment or malicious prosecution, on injury to reputation in defamation and on inconvenience and disturbance in trespass.

Type
Research Article
Information
Legal Studies , Volume 10 , Issue 2 , July 1990 , pp. 182 - 200
Copyright
Copyright © Society of Legal Scholars 1990

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References

1 [1964] AC 1129.

2 Broome v Cassell & Co Ltd [1972] AC 1027 at 1087 per Lord Reid.

3 Ibid. But see clause 8(2) of the Courts and Legal Services Bill 1990, discussed infra..

4 Ibid, at p 1114.

5 Ibid, at p 1087.

6 [1964] AC 1129.

7 Ibid, at p 1221.

8 Cf Lord Reid's view in Broome v Cassell & Co Ltd [1972] AC 1027 at 1098. He thought that the only real justification for awarding exemplary damages in the two categories selected by Lord Devlin was that they were already clearly covered by authority.

9 Rookes v Barnard [1964] AC 1129 at 1226.

10 Ibid..

11 Rookes v Barnard [1964] AC 1129 at 1226 (emphasis added).

12 Accordingly, it is not necessary to prove that the defendant had actually calculated a profit or had, in fact, made a profit.

13 Rookes v Barnard [1964] AC 1129 at 1227.

14 Ibid, at p 1227.

15 Ibid..

16 Ibid, at p 1130 per Lord Diplock.

17 15th edn. Sweet & Maxwell Ltd, London, 1988.

18 At para 415.

19 Broome v Cassell & Co Ltd [1972] AC 1027 at 1120.

20 Moris v Beardmore [1980] 2 All ER 753 at 762 per Lord Edmund-Davies.

21 [1987] QB 380.

22 (1982) Times, 24 April. A news report in The Times, 6 December 1989 indicates that in Taylor v Metropolitan Police Commissioner an exemplary award of £70,000 was made on top of awards of £10,000 for false imprisonment and £20,000 for malicious prosecution.

23 [1985] 3 CL 249.

24 (1984) 134 NLJ 888.

25 See [1970] 1 All ER 980 at 986.

26 (1982) 75 Cr App Rep 24.

27 Broome v Cassell & Co Ltd [1972] AC 1027 at 1088 per Lord Reid.

28 Cf Lord Wilberforce who believed that exemplary damages ought to be given in cases involving exceptionally malicious or irresponsible libels. Ibid, at p 1119.

29 Ibid, at p 1079 per Lord Hailsham LC.

30 Ibid, at p 1129.

31 [1965] 2 QB 86.

32 [1965] 2 QB 86 at 107 (emphasis added).

33 CA, unreported.

34 CA, unreported.

35 Op cit, supra, fn 17, para 411.

36 Ibid, at para 411.

37 See for example: McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86; Broadway Approvals v Odhams Press [1965] 1 WLR 805; and Manson v Associated Newspapers [1965] 1 WLR 1038.

38 [1972] AC 1027.

39 Cmnd 5909.

40 [1978] 1 WLR 455.

41 CA, unreported. See also Chukwu v Iqbal, CA, unreported; see further Wise v Omkarawanda, unreported, in which Popplewell J awarded exemplary damages of £1,000.

42 CA, unreported.

43 On this point see also Ewing v Vasquez, CA, unreported and Muljee v Rezaul Hague, CA, unreported.

44 (1985) 135 NLJ 708.

45 [1987] CLY 1143.

46 A new s 1(2)(a) was substituted by s 4(2) of the Administration of Justice Act 1982. However, the exclusion of exemplary damages is unaffected.

47 See ibid, at p 1133 also for his reasoning.

48 [1960] AC 1027.

49 [1973] 1 All ER 241.

50 Ibid, at p 266. A plea for exemplary damages pursuant to s 17(3) of the Copyright Act 1956 was also made in Sony Corpn v Anand (No 2) [1982] FSR 200; in Wilden Pump & Engineering Co v Wilden Exports Inc, ChD, unreported, a claim for exemplary damages outside the terms of s 17(3) was categorically rejected by Whitford J.

51 [1982] AC 380.

52 Rookes v Burnard [1964] AC 1129 at 1227 (emphasis added). This appears to be a novel requirement. See Barbara v Home Office, discussed fully infra (1984) 134 NLJ 888.

53 [1985] QB 401. In Makanjuolu v Commissioner of Police of the Metropolis (1989) Times, 8 August, Henry J held that disciplinary proceedings did not render an award of exemplary damages unfair.

54 [1984] IRLR397. This case is an example of category two being stretched. It includes tortious interference with a plaintiffs business which is based on the authority of Bell v Midland Railway Co (1861) 10 CBNS 287.

55 CA, unreported.

56 Cf Devonshire B. Smith v. Jenkins, CA, unreported, where an exemplary award was refused because the landlord had paid a fine for the same acts.

57 Rookes v Barnard [1964] AC 1129 at 1277 per Lord Devlin.

58 In Makanjuola v Commissioner of Police of the Metropolis (1989) Times, 8 August, the means of the defendant was taken into account in assessing exemplary damages.

59 ‘Punitive Damages and the Rule of Law: The Role of Defendant's Worth’ (1989) XVIII(2) The Journal of Legal Studies, 415–425.

60 Delay by the plaintiff in bringing an action was considered to be a factor in not awarding the plaintiff exemplary damages in, at least, a case of passing-off and conspiracy: see Unik Time Co Ltd v Unik Time Ltd [1983] FSR 121; see also Bishop v Commissioner of Police of the Metropolis (1989) Times, 5 December, wherein the Court of Appeal held the plaintiff's conduct to be relevant to an award of exemplary damages in the tort of malicious prosecution.

61 [1968] QB 379.

62 See also O'Connor v. Hewitson [1979] Crim LR 46 and Taylor v Rees [1978] 2 CL 244.

63 [1976] 3 All ER. See also Barnes v Nayer, CA, unreported.

64 [1972] AC 1027.

65 Ibid, at p 1090 per Lord Reid.

66 [1986] QB 256.

67 Per Lord Esher MR in Praed v Graham (1890) 24 QBD 53 at 55.

68 Per Palles CB in McGrath v Bourne (1876) IrR 10 CL 160 at 164.

69 For a recent example of the exposition of the relevant principles see Blackshaw v Lord [1983] 2 All ER 311.

70 Broome v Cussell & Co Ltd [1972] AC 1027 at 1135 per Lord Kilbrandon.

71 Ibid, at p 1131.

72 Ibid, at p 1114. For an interesting example of a claim for exemplary damages, which failed, for trespass to land see Swinglehurst v Holbert, QBD, unreported.

73 McGregor, op cit, supra, fn 17, para 421.

74 (1984) 134 NLJ 763. This decision conveniently avoided the rule that exemplary damages are unavailable for breach of contract.

75 (1983) 133 NLJ 65.

76 [1970] 1 QB 548.

77 Ibid, at p 558. It is interesting that the Court of Appeal insisted on the standard of proof required in criminal cases.

78 [1985] QB 401. Compare the view of the Court of Appeal in Metall und Rohstoff AG v Acli Metals (London) Ltd [1984] 1 LI Rep 598 wherein that court doubted whether exemplary damages were available in deceit.

79 (1984) 134 NLJ 888 discussed fully supra..

80 QBD, unreported.

81 [1986] 1 All ER 54. Cf Westwood v Hardy (1964) Times, 24 June. Seethe interesting paper given by Lesley Anderson entitled ‘Punitive damages - the next step?’ at a conference on compensation for personal injury at Manchester University, 26 May 1989.

82 The point was left open in EI Du Pont de Nemours B Co v Agnew [1987] 2 LI Rep 585.

83 (1984) 269 EG 942.

84 [1988] 1 WLR 1968.

85 Birmingham IT, 15.2.88.

86 Unreported.

87 (1989) Times, 13 July.

88 [1975] 2 All ER 173.

89 [1983] FSR 512.

90 [1981 1 FSR 337.

91 [1984] 3 All ER 381.

92 (1882) 21 ChD 421.

93 [1984] 3 All ER 381 at 385.

94 [1987] Ch 38 at 87.

95 [1979] AC 385.

96 Cmnd 5909.

97 It has been proposed that a Suitor's Fund to underwrite the costs of appeal be established.

98 [1990] 2 WLR 271; see Ghandhi, ‘No End to Libel Roulette’ (1989) 86 Law Society's Gazette 19.

99 Op cit, supra, fn 17, at para 432.

100 See supra, fn 55.

101 I am grateful to my friend Steve Weatherill of Manchester University Law Department for drawing this matter to my attention.