The first thing to analyse in this essay is the role of exemplary damages in English law. These are different from normal damages which are for compensating a claimant for their loss. Instead, exemplary damages are there to punish a defendant for doing something wrong and to deter other people from doing the same thing. For a long time, the rules on when these damages could be awarded were not very clear. However, the law was changed in the case of *Rookes v Barnard* [1964] UKHL 1. In this case the House of Lords said that exemplary damages should only be given in a few situations. This essay will look at the categories from *Rookes v Barnard* and consider if they are too narrow. It will argue that even though there are good reasons for limiting exemplary damages, the current approach is too strict and should be reformed to properly punish very bad conduct.
The main case we need to look at is *Rookes v Barnard*. In this case, Lord Devlin said that he was worried about exemplary damages. He thought that they confused the role of the civil law, which is to compensate, with the criminal law, which is to punish. He said that it was not right for a person to be punished in a civil court without the protections they would get in a criminal court. Because of this, he decided to limit exemplary damages to only two main categories. The first category is for ‘oppressive, arbitrary or unconstitutional action by the servants of the government’. The second category is where ‘the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the claimant’. Lord Devlin also said that even if a case fits into one of these categories, the claimant must be the victim of the punishable behaviour and the amount of damages should be reasonable. These rules have been the law ever since.
Looking at the first category, this is about when a public official abuses their power. This would include people like police officers or civil servants. The reason for this category is to stop the state and its agents from treating people badly. A good example of this category being used is in the case of *Thompson v Commissioner of Police of the Metropolis* [1998] QB 498. In this case, the claimant was unlawfully arrested and falsely imprisoned by the police. The court awarded exemplary damages to show that this kind of police behaviour was unacceptable. This shows that the category is useful because it provides a way to hold government servants accountable for their actions when they go beyond their powers. It acts as a punishment and a deterrent against the state abusing its citizens, which is an important function in the law. This means that for this type of situation, the law does work.
The next thing we can look at is the second category. This part of the law is for situations where the defendant has decided to do something wrong on purpose because they think they will make more money from it than they will have to pay out in damages. This is about punishing defendants who try to profit from their own wrongdoing. The case of *Cassell & Co Ltd v Broome* [1972] AC 1027 is an important one here. In this case, a publisher printed a book that contained defamatory things about the claimant. The publisher knew that the book was probably libellous, but they went ahead and published it anyway. They thought that the profit they would make from selling the book would be more than any damages they might have to pay for libel. The House of Lords said this was a clear case for exemplary damages. This meant that the publisher had to pay a large amount of money to punish them for their cynical behaviour. This category is therefore important to stop people from thinking they can just break the law and pay compensation as a business expense.
However, a major problem with the rules from *Rookes v Barnard* is that they are very narrow. This means that a lot of very bad behaviour cannot be punished with exemplary damages because it does not fit neatly into one of the two categories. For example, if a large private company, which is not a servant of the government, acts in a truly terrible way towards a person but not in a calculated way to make a profit, then exemplary damages would not be available. The claimant would only get compensation for their loss, and the company would not be punished for its conduct. This does not seem fair. The Law Commission looked at this issue in its report on Aggravated, Exemplary and Restitutionary Damages in 1997. The Commission said that the categories in *Rookes v Barnard* were ‘illogical’. They asked why a government official acting badly should lead to exemplary damages, but a private individual or company acting in the exact same bad way should not. This shows that there is a clear problem with the current law and that it can lead to unfair results.
Because the rules are seen as illogical and too narrow, many people argue that they should be reformed. The main purpose of exemplary damages is to punish wrongdoing and deter it from happening again. If they can only be awarded in two very specific situations, then their ability to deter bad behaviour is very limited. This argument would be that the law is failing to achieve its goal. We can look at other countries to see a different approach. For example, in Australia and Canada, the courts are not restricted by categories. They can award exemplary damages in any kind of case as long as the defendant’s behaviour was outrageous or showed a cynical disregard for the claimant’s rights. This allows the courts more flexibility to punish defendants in cases where it is deserved. If England and Wales adopted a similar approach, it would allow the courts to respond to all kinds of unacceptable conduct, not just the two types identified by Lord Devlin. This would make the law more just and a better deterrent.
On the other hand, there are also strong arguments for keeping the law as it is. As Lord Devlin said in *Rookes v Barnard*, there is a danger in blurring the lines between civil and criminal law. The job of the civil law is to put the claimant back in the position they were in before the wrong happened. The job of the criminal law is to punish people who break the law. If civil courts start handing out large punishments, it is like a fine from a criminal court but without the important safeguards, such as the requirement for the case to be proved beyond a reasonable doubt. Another point is that changing the law could create a lot of uncertainty. If there were no clear categories, it would be difficult for lawyers to advise their clients on whether exemplary damages might be awarded. This could lead to more cases going to court and unpredictable results, which is not good for the legal system. This argument would be that it is better to have clear and certain rules, even if they are narrow, than to have wide rules that are vague and uncertain.
In conclusion, the approach to exemplary damages set out in *Rookes v Barnard* is very limited. It restricts awards to only two categories which has the benefit of creating certainty and keeping a clear line between civil and criminal justice. We have seen that these categories can work to punish government servants who abuse power and defendants who try to profit from their wrongs. However, the categories are too narrow and have been called illogical by the Law Commission. They mean that many forms of outrageous behaviour go unpunished simply because they do not fit into one of the two boxes. Other countries show that a more flexible approach is possible, which would allow courts to punish and deter a wider range of bad conduct. Although there are good reasons to be cautious about expanding the use of exemplary damages, the current approach is too strict. A reform that gives judges more discretion to award these damages in exceptional cases of wrongdoing, while still being careful, would create a fairer and more just system.
References
Cassell & Co Ltd v Broome [1972] AC 1027
Law Commission (1997) *Aggravated, Exemplary and Restitutionary Damages*. Law Com No 247. HC 345. HMSO.
Rookes v Barnard [1964] UKHL 1, [1964] AC 1129
Thompson v Commissioner of Police of the Metropolis [1998] QB 498
