Aggravated Damages or Additional Awards of Solatium: A Distinction without a Difference?

DOI10.3366/elr.2018.0454
Published date01 January 2018
Date01 January 2018
Pages29-54
Author
INTRODUCTION

In recent years, the English law of damages has gained an extraordinary amount of attention. Much of this is likely attributable to the judicial recognition of new heads of award, such as “vindicatory damages”, “restitutionary damages” and “Wrotham Park damages”, all of which have stirred vigorous academic debate. But there is also ongoing interest in the nature and proper role of long-established heads of damages; in relation to exemplary damages, for instance, James Goudkamp recently observed that “[t]he literature is on a staggeringly large scale”.1 Some have even attempted to radically reconceptualise our understanding of compensatory damages,2 undoubtedly the most common (and many would say well-understood) award of all. Furthermore, scholarship is beginning to address the complex relationship between tortious damages and awards under the Human Rights Act 1998, an issue which is likely to only grow in importance.3 No longer is the law of damages seen as a dull area of practice; it is now a fertile ground for discussion, debate and development.

For one reason or another, this subject has not attracted the same level of attention in the context of Scots law. The late Harvey McGregor QC was a Scot, but he devoted his attention primarily to the English rather than the Scots law of damages, writing the authoritative common law text – McGregor on Damages.4 McGregor did not, however, overlook the Scots authorities.5 In fact, the dictum which he referred to until the eighteenth edition of his text as “the statement of the general rule from which one must always start in resolving a problem as to the measure of damages”6 comes from a Scottish appeal to the House of Lords,7 raising the question of how closely related the Scots and English laws of damages really are to one another. It is well known that there is at least one striking difference: that although “exemplary damages” are available in particular circumstances under English law,8 they are incompetent in Scots law.9 But what about another head of damages granted from time to time by the English courts – “aggravated damages”? Many Scots lawyers are likely to be unfamiliar with the label. Some might recognise it, but be unclear as to the nature of such awards and unsure as to whether they are known to Scots law.

This article begins by considering the nature of aggravated damages. Although commonly misconceived as a punitive award, aggravated damages are in fact a discrete head of compensatory damages aimed at redressing extra mental distress caused by a wrongdoer's aggravating conduct or motive. The recent Outer House decision of Adebayo Aina v Secretary of State for the Home Department10 will then be discussed, in which Lord Glennie took the view that aggravated damages are, in principle, a competent remedy under Scots law. Thereafter, various cases and scholarly texts which preceded Adebayo Aina will be examined. This will show that although there is prior authority which holds that Scots law does not recognise a discrete head of aggravated damages, there are cases in which the level of solatium granted by the courts to compensate for mental distress has been increased where the exceptional conduct or motive of the wrongdoer has caused the victim further distress. The additional awards of solatium granted in these cases appear to perform the same function as aggravated damages. In the final section it will be argued that, despite their similarities, this traditional Scots approach is preferable to the English aggravated damages model. While the central focus of this section is the correct approach for Scots law, it may still be of interest to English lawyers, since there are signs that English law might be moving closer to the Scots position.

WHAT ARE AGGRAVATED DAMAGES?

A longstanding point of both controversy and confusion in English law is whether aggravated damages serve to compensate or to punish. Indeed, as recently as 2010, John Murphy observed that these conflicting analyses represent “two diametrically opposed schools of thought”.11 Those who consider aggravated damages to be punitive tend to regard them as being cut from the same cloth as the unquestionably penal “exemplary damages”.12 It is certainly true that, from a historical perspective, these two labels were both used along with other terms such as “punitive”, “retributory” and “vindictive”13 to refer to, as Eric Descheemaeker puts it, “a class of damages where, at least on the face of it, the sum awarded did more than compensate for the claimant's loss”.14

However, Lord Devlin's speech in the seminal House of Lords decision of Rookes v Barnard15 severed the association between the terminology of aggravated damages and the goal of punishment, and simultaneously replaced this with a compensatory analysis. Aggravated damages are now widely accepted to be a separate head of compensatory damages, the purpose of which is to redress extra mental distress suffered as a result of the defendant's outrageous or malicious behaviour or motive, either in committing a tort or thereafter. This point will be returned to at a later stage, but it is important to emphasise that aggravated damages are typically treated as a discrete head of damages, distinct from other compensatory awards, such as those made for ordinary mental distress – i.e. distress not caused by the defendant's exceptional conduct or motive.16 So while an individual who is, for example, defamed will generally experience mental distress, and will be entitled to general compensatory damages as a result, he would likely sustain extra distress if he were treated by the wrongdoer in a contemptuous or high-handed manner, and it is this distress which aggravated damages aim to remedy.

While alternative compensatory explanations have been advanced,17 support for this compensatory analysis can be found in numerous subsequent cases,18 statutory provisions,19 books,20 articles,21 and in the report of the Law Commission (England and Wales) on Aggravated, Exemplary and Restitutionary Damages.22 One of the proposals in that report was the introduction of legislation to clarify that the sole purpose of aggravated damages is to compensate for mental distress.23 Although a general statement to this effect has not been enacted, a provision of this kind was introduced in the Crime and Courts Act 2013, which applies only to defamation and certain other listed claims24 brought against a “relevant publisher”.25 Section 39(2) of this Act provides that “Aggravated damages may be awarded against the defendant only to compensate for mental distress and not for purposes of punishment”. Significantly, section 39(4) clarifies that although the provision is not of universal application across the law of tort, “Nothing in this section is to be read as implying that, in cases where this section does not apply, aggravated damages may be awarded for purposes of punishment”.

THE SCOTTISH SOURCES <italic>Adebayo Aina v Secretary of State for the Home Department</italic>

The nature of aggravated damages was a relevant – and disputed – issue in the recent Outer House case of Adebayo Aina v Secretary of State for the Home Department.26 It is unnecessary fully to explore the facts or legal considerations, since this article is concerned with only one aspect of the decision. Nevertheless, a brief overview will help to set the scene. The case centred around the petitioner, a Nigerian national married to a British national, who sought a residence card for the European Economic Area. Having submitted his application, the petitioner was granted a “certificate of application”, which informed him that his request would be processed within 6 months and enabled him to work in the United Kingdom during the interim period. The petitioner's application for a residence card was refused by the respondent on 17 December 2013, after which the petitioner appealed. This was the beginning of a long and complex appeals process, which resulted in the decision being sent back to the respondent to make a fresh decision on two separate occasions. The problem for the petitioner was that, six months after his certificate of application had first been issued, it no longer had the effect of entitling him to work in the UK. This meant that, in order to commence the job he was offered with Royal Mail in late 2014, his certificate of application required to be renewed.

Accordingly, the petitioner asked for a renewal from the respondent, but this request was rejected. Thereafter, the petitioner sought judicial review of this decision in the Outer House, maintaining that the respondent's refusal to renew his certificate of application was unlawful, and seeking damages for loss which he claimed to have suffered.27 The Lord Ordinary (Glennie) agreed that the respondent's decision to refuse the renewal of the petitioner's certificate of application had been wrongful.28 As for damages, Lord Glennie held that the petitioner had satisfied the test – set out in Brasserie du Pêcheur SA v Germany29 – to determine whether an individual can recover damages against a Member State for acting in contravention of European Union law.30

Having established that the petitioner was entitled to damages in principle, Lord Glennie gave the petitioner – who was a party litigant – the opportunity to set out in more detail the different heads of damages which he sought to recover.31 The only head of damages claimed by the petitioner which is relevant for present purposes is that of aggravated damages.32 The basis upon which he sought this award was his submission that the respondent's conduct in rejecting his application for a renewed certificate of application was “wanton, deliberate and clearly unjustified”.33 The petitioner found support in the judgment of Lang J in R (on the application of Santos) v Secretary of State for the Home Department.34 In that case, Lang J awarded Mr Santos, who had been wrongfully refused a...

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