IN DEFENCE OF LORD DEVLIN

AuthorHarvey McGregor
Publication Date01 Sep 1971
DOIhttp://doi.org/10.1111/j.1468-2230.1971.tb02346.x
IN DEFENCE
OF
LORD DEVLIN
WITH
a
show of extraordinary bravado the Court of Appeal
in
Broome
v.
Cassell
Si.
Co.'
has poured scorn upon the House of Lords'
rejection in
Roolces
v.
Barnurd
of exemplary damages as
arn
anomalous feature
of
English law, and particular scorn upon the
careful speech
of
Lord Devlin, speaking
for
a
unanimous House.
According to the Court of Appeal, the decision is inconsistent with
two earlier decisions
of
the House of Lords in which exemplary
damages were
"
clearly approved," and accordingly
"
if
ever theire
was
a
decision of the House of Lords given
per incuriam,
this wiis
it
";
the decision has met with
"
wholesale condemnation
'I'
throughout the rest
of
the common law world; and the retention of
three limited categories where exemplary damages may still run
is
"
hopelessly illogical and inconsistent."
For
good measure the
Court
of
Appeal prescribed that, until the House of Lords has had
another chance to
look
at the whole problem, judges should direct
juries in accordance with the law
as
it
stood before
Roolces
v.
Barna~d.~
The question of whether
a
modern legal system should
recognise exemplary damages may be
a
matter
of
debate, but
if
the voting is
to
take place in an impartial manner these strictures
should not go unanswered.
Stricture one
:
the decision was am-ved at per incurium because
exemplarti damages had already been tzvice approved by the
House
of
Lords
The two cases in which exemplary damages are said to have
been approved by the House of Lords, and accepted as part of
English law, are
Hulton
v.
Jones
and
Ley
v.
Hamilton.6 Hulton
v.
Jones
need not detain us for there is not
a
single mention,
express
or
by implication, of exemplary damages throughout the
speeches
in the House, the judgments in the Court of Appeal,
or
the
speeches
of
counsel in either court.
It
is plain that all concerned
accepted that the award
of
damages could only
be
impugned
if
1
[1971]
2
W.L.R.
853
(C.A.):
aotions for
libel by distinguished nav.al
officer
against publisher and author
of
book telling
of
wartime destruction
of
navy-
escorted convoy, plaintiff claiming book to
be
libellbuus in suggwting thait
respon4bility
for
disaster
la\-
in part with him; jnry awarded
2240,000
damages
against both defendants,
of
which
2215,ooO
was
compensatory
and
2226,000
exemplary.
2
W.L.R.
853, 870-871
(C.A.).
*
[19M]
A.C.
1129.
3
These phrases are all taken
from
the
judgment
of
Lord
Denning
M.R.
at
[I9711
4
Ibid.
at
pp.
873D
and
887B.
5
[1910]
A.C.
20,
affirming
[1909]
2
K.B.
444
(C.A.).
6
(1935)
153
L.T.
384
(H.L.),
reversing
(1934) 151
L.T.
360
(C.A.).
520

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