The Law Commission Report on Aggravated, Exemplary and Restitutionary Damages

Publication Date01 Nov 1998
DOIhttp://doi.org/10.1111/1468-2230.00182
AuthorPeter Jaffey
The Law Commission Report on Aggravated, Exemplary
and Restitutionary Damages
Peter Jaffey*
The Law Commission has published its final report on aggravated, exemplary and
restitutionary damages, the most important recommendation of which is an
expansion of the availability of exemplary damages.1The Report was preceded by
two consultation papers, and this is no doubt indicative of the range of views held
on the subject and the problems of reconciling them. Aggravated and exemplary
damages have been a perennial source of controversy, since before the famous case
of Rookes vBarnard.2They raise not only problems of terminology, but also more
fundamental problems concerning the relation between civil and criminal
procedure, and the rationale for punishment and civil remedies. One source of
difficulty may be that the issues tend to span different areas of practical expertise
and research. Another may be that theoretical issues are lost in what appear to be
matters of practice and procedure. Restitutionary damages are no less
controversial. Under this name they are not a traditional remedy; the expression
has emerged from the academic development of the law of restitution. Despite the
academic attention they have received, it remains controversial to what extent they
are found in the common law, how they are to be justified, and when they should
be available.
Aggravated damages
The Report is about the appropriate legal response to a wrong to the plaintiff. A
‘wrong’ means a breach of duty owed to the plaintiff, however arising; ‘legal
response’ is intended as a general term to include (amongst other things)
compensation, an injunction or punishment.3The usual response in civil
proceedings is a remedy, in the sense that the response seeks to remedy or rectify
the wrong through an injunction to secure the fulfilment of the duty, or
compensation to simulate the performance of the duty by giving the plaintiff the
pecuniary value of the performance of the duty owed to him.4Punishment is a
different form of response, which is not a remedy at all in this sense. It is an
important feature of the Report that it upholds the distinction now recognised in the
case law between aggravated damages, which are remedial, and exemplary
damages, which are punitive.5Aggravated damages, the Report considers, are
intended to compensate for a particular form of harm, namely mental distress, or at
* Department of Law, Brunel University.
1Aggravated, Exemplary and Restitutionary Damages, Law Com no 247, 16 December 1997, hereafter
referred to as ‘the Report’.
3 These expressions are not defined in these terms in the Report.
4 See Daniel Friedmann, ‘The Performance Interest in Contract Damages’ (1995) 111 LQR 628.
5Rookes vBarnard [1964] AC 1129; Report, paras 2.2, 2.40–2.43.
The Modern Law Review [Vol. 61
860 The Modern Law Review Limited 1998

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