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Lionel Smith
Tue, 16 Dec 1997 11:01:24
Law Commission Report


1. Colin Riegels wrote:

Equity and commerce have never been comfortable bed-fellows.

I must say I have never really understood this sentiment given that the primary mode of taking security over movables in unreformed jurisdictions such as the UK is via the equitable charge.

2. Published yesterday was the English Law Commission's Report No. 247, Aggravated, Exemplary and Restitutionary Damages. It is available on the Web at

http://www.gtnet.gov.uk/lawcomm/ library/lib-com.htm#liblc247

You can browse it or download a pdf version. To use pdf you need a program called Adobe Acrobat Reader, which is free (and available for all major platforms) and allows you to view or print the file. You can get it by visiting


or ‹http://www.adobe.co.uk/products/ acrobat/download/readstep.html

or ‹http://www.adobe.com/prodindex/ acrobat/readstep.html›.

Here is an extract (probably Crown copyright) from the online summary of the Report:

"The Law Commission considers punitive damages should be placed on a clear, principled, but tightly controlled, footing. We therefore propose a detailed legislative scheme according to which:

  • Punitive damages would be available for a legal wrong (other than breach of contract) if the defendant has deliberately and outrageously disregarded the plaintiff's rights.

  • The decision to award punitive damages, and their amount, would be matters for judges to decide; even where a civil trial is otherwise by jury, these matters would never be decided by a jury.

  • Punitive damages would not be awarded where the defendant has been convicted of a criminal offence for the same conduct, or where another available remedy is adequate punishment.

  • Some subsidiary good aspects of the present law on punitive damages would be preserved (eg on the standard of proof).

  • Some subsidiary outdated aspects of the present law would be replaced by modern rules. For example, we recommend a diametrically opposite approach to the present law on survival of claims to punitive damages, so that the claim survives in favour of a deceased plaintiff's estate, but does not survive against a deceased defendant's estate.

Our Report also makes recommendations relating to two other types of damages: 'aggravated damages' and 'restitutionary damages'.

  • Aggravated damages compensate for mental distress caused by the manner or motive with which the wrong was committed. There has been some confusion in the past about whether aggravated damages have the rather different purpose of punishing a wrongdoer. We recommend legislative reform which will remove the confusion once and for all.

  • Restitutionary damages aim to strip from a wrongdoer gains made by committing a wrong. We think that restitutionary damages ought to be more widely available than at present, but that such development is, in general, best left to the courts. Our legislative proposals are therefore confined to ensuring that, wherever punitive damages could be awarded by a court, the court will also have available to it the less extreme remedy of restitutionary damages. Thus we propose that restitutionary damages should be available for a legal wrong (other than breach of contract) if the defendant has made gains by deliberately and outrageously disregarding the plaintiff's rights.


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