Punitive damages

Abstract

Punitive or exemplary damages are damages whose purpose is to punish the defendant for his or her wrongful conduct. In Broome v Cassell Lord Hailsham said that he preferred the term ‘exemplary damages’ to ‘punitive damages’ as better expressing the policy of the law. English courts have subsequently followed Lord Hailsham’s preference. But in its Report on this area in 1997, the Law Commission recommended that the pre-Broome v Cassell terminology of ‘punitive damages’ was clearer and more straightforward and did not accept that this label deflected attention from the deterrence and disapproval aims of such damages. As the Law Commission said, ‘When one uses the term “punishment” in the criminal law, one does not thereby indicate that deterrence is not an important aim.’ Although nothing of substantive importance should turn on which label is adopted, the Law Commission’s approach is persuasive and the term ‘punitive damages’ is therefore preferred in this chapter and book.