Introduction
In 1961, a young barrister of the Inner Temple, Harvey McGregor, delivered the much-anticipated twelfth edition of John D Mayne’s mid-nineteenth-century treatise on the law of civil damages. As for the law concerning aggravation of damages, McGregor described it as having ‘taken up a Janus-like attitude’.Footnote 1 In Roman mythology, Janus was the god of gates and doorways – of beginnings that double as ends. He was depicted with two faces, each looking in the opposite direction.
For McGregor, the likeness of this area of damages law to the mythical two-faced deity lay in its untheoretical tendency to look at once to the punishment of civil wrongdoers, and to the full compensation of those who had suffered. This tendency was linked to a damages label first attested in the English common law’s mid-eighteenth-century sources: ‘exemplary’. Despite its strong punitive connotations, the label was often used, including by McGregor,Footnote 2 to loosely characterise any enlargementFootnote 3 of damages on account of evidence proving that a civil, usually tortious, wrong had been made worse – ‘aggravated’ – by the manner or circumstances of its commission.
It was not until 1964 that the House of Lords finally moved to dispel the Janus-like attitude in which the law concerning aggravation of damages had persisted. In Rookes v Barnard,Footnote 4 Lord Devlin regretted the laxity with which the ‘exemplary’ label in particular continued to be used to characterise enlarged damages awards in tort cases involving aggravated wrongs.Footnote 5 He thus set about restating as much of the law as would be necessary to unmingle the theoretically distinct elements of punishment and compensation, which often comprised so-called ‘exemplary’ damages. A theoretically-minded House agreed with Lord Devlin that two changes were necessary.
The first involved heavily restricting the aggravated cases of tort in which, seemingly consistent with earlier precedent, enlarged damages awards could exceptionally comprise a distinctly punitive element.Footnote 6 The second change involved adopting a label less connotative of punishment than ‘exemplary’ (and ‘vindictive’) to characterise damages awards comprising a larger compensatory element. Lord Devlin proposed the label ‘aggravated’.Footnote 7 Aggravated damages would enlarge upon a tort plaintiff’s compensatory damages; specifically, as a consolation for non-pecuniary injury to such feelings as ‘pride and dignity’Footnote 8 that an aggravated wrong further caused them to suffer. Unlike exemplary damages, the recovery of aggravated damages would also be far less restricted.
The ultimate effect of these two changes was for the hitherto Janus-faced law concerning aggravation of damages to – save in exceptional cases – only look to compensate for the full extent of a tort plaintiff’s suffering. So much so that Lord Devlin’s restatement of this area of civil damages law may be viewed as having marked a very sharp line between where its history finally ended, and its modernity would begin. Yet, the modern post-1964 law concerning aggravation of damages has proved controversial. Indeed, in the six decades since Rookes was decided, the two changes it brought about have attracted intense scholarly and law reform debate in England.Footnote 9 Regarding the first change, for example, serious doubt has long been raised about whether the punishment of civil wrongdoing before 1964 was as exceptional – not to say ‘anomal[ous]’Footnote 10 – as the House decided.Footnote 11 Calls have thus been made for a considerable expansion of the aggravated cases, both within and beyond tort, in which enlarged damages awarded by way of punishment ought to be recoverable.Footnote 12 Regarding the second change, the aptness of the ‘aggravated’ label has also been questioned. Despite its widespread adoption since 1964, the label has been thought to carry enough of a punitive connotation as to be a ‘misleading’Footnote 13 characterisation of enlarged damages awarded by way of compensation.Footnote 14 With a view to reforming the modern law, alternative characterisations have thus been proposed.Footnote 15
In recent years, historians of civil damages law have set about crossing the line into what, writing after Lord Devlin’s restatement, McGregor happily dubbed the ‘old pre-Rookes v Barnard law’.Footnote 16 Their work has illuminated the origins and early growth of so-called ‘exemplary’ damages at English common law.Footnote 17 But it has yet to shed much light on the period immediately before 1964, being that from which the modern law controversially broke.Footnote 18 In doing so, this paper offers the first historical examination of the Janus-like attitude in which the law concerning aggravation of damages persisted. It does so with a view to explaining why it did so as puzzlingly late as the early 1960s. Such a historical examination cannot, of course, hope to resolve the controversy in which the modern post-Rookes law remains embroiled. It may, however, help modern legal scholars and law reformers better understand it.
In examining the period immediately before Rookes was decided, this paper draws on a breadth of primary sources. Central among them are numerous tort cases that appeared in unofficial law reports, especially The Times newspaper. Despite the establishment of official law reporting in 1865, into the twentieth century The Times remained a staple source of reports of cases litigated through England’s superior courts.Footnote 19 Yet, it remains historically under-examined. Furthermore, in order to shed sustained light on the pre-Rookes law, this paper must examine a sufficiently long enough period before the early 1960s. It hence adopts, as a convenient starting point, the judicature legislation of 1873–75. It does so for the reason that this was when England’s superior courts, including their constituent trial divisions, assumed their modern, and still largely familiar, constitution. Its end point is the twelfth edition of Mayne’s damages treatise in 1961.
The contention of this paper is that the persistence of the Janus-like attitude of the law concerning aggravation of damages is best explained by the English common law’s enduring conception of enlargements of damages, especially in tort. Throughout the period under examination, they continued to be conceived as fundamentally for civil juries, rather than judges, to determine. This was despite the fact that, into the twentieth century, tort cases in which plaintiffs often led evidence in aggravation of damages began to be tried by judges sitting without juries. Increasingly, this required trial judges to instruct – not juries, but themselves – on the substantive legal doctrine of so-called ‘exemplary’ (or ‘vindictive’) damages applicable to proven aggravated cases. Nonetheless, the historical conception of the adjudicative function – indeed, power – of assessing the sums to be enlarged in such cases as laying naturally with juries endured. The result, it shall be ultimately seen, was for the law concerning aggravation of tort damages to remain definitively unaligned with a theory, either of punishment or full compensation. This untheoretical tendency persisted as late as the early 1960s.
This paper’s historical examination is divided into three main parts. Section 1 presents the persistent intermingling of the consolatory and punitive elements as a symptom of their sharing the same source of proof; namely, evidence of an aggravated wrong. Section 2 then surveys earlier attempts at addressing the intermingling of what were increasingly perceived as two, theoretically distinct, elements. Section 3 goes on to illuminate the civil jury’s enduring power over enlarged damages determinations into the post-judicature period. It does so across three sub-parts. Section 3(a) begins by exploring the natural connection between the loose punitive labelling of such damages and tort trials by jury. Section 3(b) then examines the late appearance of the first judicially determined exemplary-vindictive damages. Finally, Section 3(c) explores the persistent judicial tendency to give untheoretical instruction on the law concerning aggravation of damages.
1. The persistent intermingling of the elements and proof of aggravated wrongdoing
Adverting to civil recovery at common law in 1888, Lord Esher MR stated that ‘the damages may be much enlarged if the conduct of the defendant has been an aggravation of’Footnote 20 the particular, usually tortious, wrong on which the plaintiff sued. By the later nineteenth century, the law concerning aggravation of damages had come to encompass not only an evidentiary aspect but a substantive one too. In its evidentiary aspect, common law judges had long been concerned with establishing rules governing the particular facts and circumstances that, given the wrong sued on, could be ‘provable in aggravation of damages’.Footnote 21 The purpose of leading aggravating evidence was to show that the defendant’s wrong was worse than it might have been.
In its substantive aspect, judges had more recently become concerned with articulating a substantive legal doctrine governing the character of the damages that a trial court could ultimately award on account of such evidence. Inspired by the iniuria concept from the Roman law of delict, trial courts would be permitted to award exemplary-vindictive damages, providing the aggravating evidence led by the plaintiff at the trial of their case showed the defendant had displayed contempt – ‘ contumelia ’ – for their rights.Footnote 22 It was in the course of summing-up the evidence that trial judges increasingly instructed, either juries or themselves, on as much of the doctrine’s substance as would enable it to be applied to proven facts about a defendant’s aggravated wrong.Footnote 23 Hence, in 1906, the Lord Chief Justice, Alverstone B, instructed a jury that they could award what he called ‘exemplary damages’, providing ‘they were of the opinion that a high-handed act of trespass had been committed’.Footnote 24 Later, in Loudon v Ryder, in 1953, the then Devlin J similarly instructed a jury that they could also award ‘what are sometimes called exemplary … damages’.Footnote 25 But the evidence would have to satisfy them that the assault had ‘insult[ed] the dignity’ of the plaintiff – that the defendant had consciously ‘invade[d] the rights of the property that a person is granted by the law of this country the liberty to hold inviolate’.Footnote 26
Significantly, in applying the substantive doctrine of exemplary-vindictive damages, trial courts did not solely account for aggravating evidence displaying what Professor John W Salmond, in his 1907 treatise on tort, rendered a ‘contumelious disregard of another’s rights’Footnote 27 to punish aggravated wrongdoers. They as much accounted for such evidence by inferring from it non-pecuniary injury, and for which a plaintiff would be further – and, in turn, fully – compensated. Non-pecuniary in nature, this further injury was to their sense of feeling personally wronged by the particular aggravated wrong done to them. And it was among the most difficult compensable tortious injuries to assess, in the phrase of a Lord Chancellor, ‘in moneys counted’.Footnote 28 In 1920, McCardie J derisively likened this adjudicative function to ‘that of an assessor in some of the markets of the Eastern world’.Footnote 29
The result was for exemplary-vindictive damages awards to often comprise two, theoretically distinct, elements: on the one hand, punishment of the defendant, whether for the sake of deterrent example, or out of pure vindictiveness; on the other, further compensation of the plaintiff as a consolation, or, as it was increasingly put, a ‘ solatium ’Footnote 30 (or solace) for their injured feelings. Into the examined period, moreover, many common lawyers tended to view these two elements as so intermingled as to be, in effect, indistinguishable. In his closing address at an 1885 libel trial, for example, the plaintiff’s counsel called on a jury to award a ‘substantial and exemplary solatium for the very gross and unwarranted attack made upon him’.Footnote 31
To the extent that trial judges identified these elements in ultimately instructing on exemplary-vindictive damages, the reported cases reveal that they tended to emphasise only one element, seemingly to the exclusion of the other. Constantine v Imperial Hotels Ltd Footnote 32 provides a good example. A Trinidadian cricketer sued for damages in tort after being denied accommodation at a London hotel, ostensibly because ‘he was a man of colour’.Footnote 33 On the cricketer’s behalf, Sir Patrick Hastings KC submitted that the defendant’s wrong called for what he labelled ‘exemplary’Footnote 34 damages. Despite the strong punitive connotations carried by counsel’s choice of label, in ultimately instructing himself, Birkett J simply took him to mean that, given the aggravating ‘circumstances in which the denial of the right took place’,Footnote 35 the full extent of the cricketer’s suffering was not limited to the denial of his bare right to be accommodated. It included further, though less easily assessable, ‘humiliation and distress’,Footnote 36 and for which larger so-called ‘exemplary’ damages would offer consolation.Footnote 37
Yet, even in cases where instructing trial judges only emphasised a punitive element, it cannot be safely assumed they intended to necessarily exclude the consolatory one. In fact, a closer inspection of the reports reveals that any punitive element comprising exemplary-vindictive damages awards was viewed as enlarging upon those awarded as a ‘fair and reasonable compensation’Footnote 38 for a tort plaintiff’s ‘actual’Footnote 39 suffering. Across many torts, such suffering was typically in the nature of pecuniary loss.Footnote 40 This made it relatively easier to assess in terms of money. Furthermore, the ‘actuality’ of a plaintiff’s compensable loss owed to it being capable of proof other than by evidence of an aggravated, usually tortious, wrong.Footnote 41 The breach of promise of marriage case of Baskerville v O’Grady,Footnote 42 as reported in The Times in April 1952, is illustrative.
In instructing the jury on damages, Lynskey J told them they ‘were entitled to give a reasonable sum to compensate the plaintiff for what loss she had sustained’.Footnote 43 However, given the aggravating circumstances in which the defendant had breached his promise,Footnote 44 Lynskey J added: ‘[t]hey were also entitled, if they thought that the defendant’s conduct deserved such punishment by way of addition to that reasonable sum, to add to that amount a sum by way of exemplary or punitive damages’.Footnote 45 Importantly, the actual pecuniary loss of the ‘value of the marriage’Footnote 46 to the woman was provable without accounting for the man’s aggravated breach of his promise to marry her.Footnote 47 Such compensable loss, however, was clearly not all she had suffered. Her suffering included further non-pecuniary injury to what, in such tort-like cases, judges had long described as her ‘feelings, affections and wounded pride’.Footnote 48 But unlike the woman’s actual loss, this injury could, as a matter of proof, only be inferred from the defendant’s aggravated breach. This made it far more difficult to assess. Thus, although Lynskey J’s ‘exemplary’ damages instruction only seemed to emphasise the punitive, rather than the consolatory element, he clearly understood the latter as intermingling with it.
2. The earlier perception of the elements as distinct in theory
This intermingling of the punitive and consolatory elements did not go entirely unaddressed. The first considered attempts to address it can be identified in the leading treatise literature. Sir Lumley Smith, for example, who assumed the editorship of the third (1877) edition of Mayne’s damages treatise, preserved Mayne’s original question as to whether, in tort, ‘damages are a compensation or a punishment’.Footnote 49 In those cases in which plaintiffs led evidence ‘render[ing] a wrongful act more wrongful’, Smith held to the view that the character of any enlargement of damages was essentially consistent with the connotations carried by the historical labels: ‘as a punishment, for the benefit of the community, and a restraint to the aggressor’.Footnote 50
In his treatise on tort, published a decade later, Oxford University’s Corpus Professor of Jurisprudence, Frederick Pollock, was little exercised by the elements comprising damages enlargements in aggravated cases. His main concern was with articulating, in substantive terms, ‘the kind of wrongs to which they [exemplary-vindictive damages] are applicable’.Footnote 51 As for the character of such damages, his view was that they ‘express indignation at the defendant’s wrong, rather than a value set upon the plaintiff’s loss’.Footnote 52 Yet, Pollock was equally alive to the fact that, in aggravated cases, what he suggestively termed a tort plaintiff’s ‘actual damage’Footnote 53 seldom marked the full extent of their suffering. He thus made clear enough that equally instructing exemplary-vindictive damages would be any aggravated wrong displaying ‘insult or outrage’, and from which further non-pecuniary injury – despite being incapable of assessment ‘by any numerical rule’Footnote 54 – could be, often quite readily, inferred.Footnote 55
It was not until two years later that the treatise literature first signalled a break from the distinctly punitive element, which Mayne originally (and successive editors of his treatise) continued to emphasise.Footnote 56 In 1888, two English barristers, John F Clerk of the Inner Temple, and William HB Lindsell of Lincoln’s Inn, published The Law of Torts. In addressing damages enlargements in aggravated tort cases, they observed that they ‘are generally spoken of as exemplary, as though the object of allowing them were punitive, and to deter others in like cases from offending’.Footnote 57 With some diffidence, however, they doubted ‘whether the better view is not that they are consolatory, rather than penal, resting on the principles that where there is [aggravating evidence] the plaintiff suffers from a sense of wrong and is entitled to a solatium ’.Footnote 58 Given the strong punitive connotations carried by the ‘exemplary’ label, Clerk and Lindsell proposed an alternative: in the margin to the left of the main text appeared – for the first time in an English legal treatise – the particular characterisation ‘aggravated damages’.Footnote 59
In addressing exemplary-vindictive damages in his 1907 tort treatise, Salmond faced a decisive choice of emphasis. A clue as to where he would ultimately place it appears in its opening two sentences. ‘A tort is a species of civil injury or wrong’,Footnote 60 the treatise began. ‘The distinction between civil and criminal wrongs’, it continued, ‘depends on the nature of the remedy provided by law’.Footnote 61 Salmond’s contribution was to find further support for Clerk and Lindsell’s exclusive emphasis on the consolatory element in the iniuria concept from which the substantive law concerning aggravation of damages had been drawing inspiration.Footnote 62 ‘It is often said’, he observed, ‘that such damages are awarded not by way of compensation, but by way of punishment for the defendant. It seems more accurate, however, to regard them as a solatium for wounded dignity and feelings: as a remedy for injuria in which the Roman lawyers used that term’.Footnote 63
Thus, by the early twentieth century, it may be suggested that the weight of emphasis, at least among leading treatise writers, had come to lie – often exclusively – with the consolatory element. The contemporary reports indicate that it also began to attract stronger emphasis among trial judges. Such emphasis is well-attested in reports of cases in which husbands whose wives had committed adultery sought damages for the ‘actual value of the wife’Footnote 64 from the other man.Footnote 65 Yet, by the late nineteenth century, trial judges had begun ruling out the possibility of enlarged adultery damages comprising any distinctly punitive element. In instructing an adultery jury in 1907, for example, The Times reports Bargrave-Deane J recalling that the defendant’s counsel had ‘quite accurately told them [the jury] that it was no part of their duty to punish the co-respondent’.Footnote 66 ‘But the learned counsel’, he hastened to add, ‘had omitted to tell them that they were entitled to [further] award the petitioner some solatium for his injured feelings’.Footnote 67
In 1920, in Butterworth v Butterworth and Englefield, McCardie J could not doubt that tort damages that ‘savour of a punitive character’, as he graphically described them, ‘are well established in England’.Footnote 68 Yet, insofar as aggravated adultery cases were concerned, he extracted from a more recent line of them the ‘settled rule … that compensatory damages only can be given, and that exemplary or punitive damages are not permissible’.Footnote 69 Still, McCardie J was at pains to clarify that the exclusion of any distinctly punitive element did not mean that ‘compensatory damages’ could not take account of a co-respondent’s aggravated wrong. It simply meant evidence of such a wrong could only be accounted for by inferring from it non-pecuniary injury further to the husband’s actual loss of his wife. Reminiscent of both Clerk and Lindsell (though perhaps more likely, Salmond),Footnote 70 he gave the following explanation:
The blow to the husband and the shock to his feelings clearly depend to a large extent on the conduct of the co-respondent. It, therefore, follows that any feature of treachery, any grossness of betrayal, any wantonness of insult and the like circumstances may add deeply to the husband’s sense of injury and wrong, and, therefore, call for a larger measure of compensation. Footnote 71
Despite the limited scope of McCardie J’s Butterworth ruling, it was apt to be perceived as giving greater prominence to the consolatory element within enlarged damages awards in tort generally.Footnote 72 Indeed, a decade later, the American civil damages scholar, Professor Charles T McCormick, singularly cited Butterworth for having further cast into doubt whether, ‘[i]n England … the accepted theory is that they [exemplary-vindictive damages] are a distinct and strictly punitive element of the recovery, or that they are merely a swollen or “aggravated” allowance of compensatory damages’.Footnote 73
Despite Butterworth, the view that exemplary-vindictive damages punished as much as they compensated still remained prominent.Footnote 74 In his 1937 A Text-Book of the Law of Tort, Cambridge University’s Rouse Ball Professor of English Law, Percy H Winfield, may well have followed Mayne in only emphasising a distinctly punitive element. ‘In exemplary damages’, he tersely stated, ‘it [the court] can punish the defendant’.Footnote 75 Similarly, in instructing the Loudon jury in 1953, Devlin J seemed to accept a strictly punitive theory of the assault damages to be enlarged beyond the plaintiff’s actual loss of her bodily integrity. So much so that he invited them to regard their awarding of what he must have deliberately labelled ‘punitive’ damages as ‘rather like imposing a [criminal] fine, as if you were a bench of magistrates … which has to hit the defendant hard’.Footnote 76
Whether or not attributable to McCardie J, at least one trial judge was reportedly inclined to separate out the punitive and consolatory elements in instructing on enlarged damages. In 1955, in Patino v Daily Mirror Newspapers Ltd, Sellers J specifically told a libel jury to treat the libelled plaintiff’s ‘mental suffering, injured pride, and wounded feelings’ as a further ‘head’Footnote 77 of compensatory damages. As for damages that would be not compensatory but ‘punitive in character’, they too were permitted, but would need to be treated under a distinct head, which Sellers J advisedly labelled ‘exemplary’.Footnote 78
For their part, appellate judges appear to have been little inclined to definitively align aggravated, usually tortious, recovery either with a punitive or full compensatory theory. The appellate reports of the time do, nonetheless, attest the consolatory element rising to greater prominence.Footnote 79 For example, in deciding when an appellate court might interfere with defamation verdicts on the ground that the damages had been enlarged to an excess, Scrutton LJ, and, in turn, Goddard LJ, opined that there would have to be a wholly ‘[un]reasonable relation between the wrong done and the solatium applied’.Footnote 80 In defamation cases, a solatium compensated for non-pecuniary injury suffered further to a plaintiff’s ‘actual [reputational] injury’.Footnote 81 In 1935, in Ley v Hamilton, Lord Atkin described such injury in terms of ‘the insult offered or the pain of a false accusation’.Footnote 82 Indeed, addressing the Court of Appeal’s concerns that enlarged defamation damages were comprising too large a distinctly punitive element,Footnote 83 he supposed ‘[t]he “punitive” element was not something which was or could be added to some known … [element] which was non-punitive’.Footnote 84 Lord Atkin’s point was clear enough: talk of what a later Master of the Rolls would dub the ‘so-called punitive’Footnote 85 element being ‘added’ to defamation damages ignored the fact that it was impossible to say where the consolatory element ended, and a distinctly punitive one (if at all) began.Footnote 86
By the 1950s, a new generation of academic legal writers set about unmingling the punitive and compensatory elements, which together often comprised awards of what English judges continued to loosely label ‘exemplary’ (or ‘vindictive’) damages. In 1955, shortly after taking a chair in law at Nottingham University, Professor Harry Street published a new text on tort.Footnote 87 His account of enlargements of damages was boldly entitled ‘Aggravated and Exemplary Damages Distinguished’.Footnote 88 In his view, the persistence of such loose punitive labelling failed to ‘adequately describe’Footnote 89 those many damages enlargements where, ‘in order to ascertain the nature and the extent of the injury done to the plaintiff, it is often material to examine the circumstances surrounding the commission of the [defendant’s] act’.Footnote 90 Thus, rather more purposefully than earlier treatise writers, he proposed that the consolatory element be severed from the exemplary-vindictive awards in which it continued to intermingle, and be reallocated to what henceforth ought to be ‘called aggravated damages’.Footnote 91
Street’s attempt to sharply distinguish aggravated-compensatory from distinctly punitive damages did not go unnoticed. Six years later, the distinction was heeded by the Oxford fellow, Robert FV Heuston, upon assuming the editorship of Salmond’s tort treatise. Seeming to underscore that it still remained an academic point, Heuston noted that ‘[n]o distinction has been taken in the authorities between “aggravated” and “exemplary” damages’.Footnote 92 The House was to decide Rookes just three years later.
3. The civil jury’s enduring power over damages enlargements in tort
Legal historians have cautioned against the temptation to assume that, with the first possibility of civil trial by judge alone in England, the jury ineluctably ‘faded into insignificance’.Footnote 93 As Lobban recently suggests, well beyond the first suite of legislative reforms in the mid-nineteenth century,Footnote 94 ‘the [civil] jury continued to be in popular demand’.Footnote 95 Such demand seems to have remained highest in those civil cases in which, historically, common law judges had been very reluctant to interfere with ‘the jury’s power to determine the … damages’.Footnote 96 Among such cases had been those in which plaintiffs pleaded, with a view to ultimately proving, ‘an aggravation of’Footnote 97 the, usually tortious, wrong sued on.
(a) The natural connection between punitive labelling and trial by jury
After the judicature legislation, the first reforms concerned with the mode of civil trial were the Rules of the Supreme Court 1883. Order 36 stipulated that, save in limited situations, ‘upon application … of any party … an order shall be made for trial by jury’.Footnote 98 Its effect, Lobban suggests, was for the ‘fate of the civil jury’ to substantially lie ‘in the hands of the litigants’.Footnote 99 There is a sound basis for assuming that, in aggravated tort cases, applications for trial by civil jury concealed a particular preference for the jury as the ‘assessing tribunal’.Footnote 100
Significantly, well into the second quarter of the twentieth century, the only tort trials at which damages labels strongly connotative of a defendant’s punishment were reportedly used were those where at least one of the litigants had entrusted a jury with the damages to be determined. As shall be seen, the loose punitive labelling of tort damages enlargements was a continuation of pre-judicature nisi prius advocacy on damages. Within the newly established Queen’s (and later King’s) Bench Division in particular, such advocacy continued to be typified by forceful, occasionally intemperate, appeals to the ‘rough and informal justice’Footnote 101 with which civil juries dispensed.
Careful consideration of these appeals reveals the extent to which determinations as to exemplary-vindictive damages were still regarded as treatment that the worst tortious wrongdoers received directly from jurors. Indeed, at very many tort trials, counsel are routinely reported calling (occasionally, even beggingFootnote 102) for such damages ‘at the hands of the jury’.Footnote 103 At an 1899 libel trial in the Queen’s Bench Division, for example, the plaintiff led evidence showing that the libel that London’s evening broadsheet, The Star, remained set on justifying ‘was a very gross one, and calculated to ruin any man in his business prospects’.Footnote 104 In closing the plaintiff’s case, The Times reports the soon to be appointed High Court judge, Mr Horace Avory, seeking ‘exemplary damages at the hands of the jury’.Footnote 105 Occasionally, the reports indicate that plaintiffs’ counsel, having presumably advised jury trial, expected that such submissions on damages would ‘induce’Footnote 106 members of the popular tribunal. Appearing before a jury of the King’s Bench Division in 1910, the senior Irish advocate, Mr Robert McCall KC, is reported to have ‘submitted with confidence that it was a cruel libel, and asked for exemplary damages’.Footnote 107
As the contemporary trial reports further reveal, counsel for defendants were often poised to counteract such inducements. At an 1889 breach of promise trial, the co-respondent’s counsel closed his defence by calling out the plaintiff for having obviously played to the popular crowd. ‘Those who applauded so loudly in Court’, the jury were told, ‘showed that they were unfit to form a dispassionate judgment, but he hoped the jury were not in such a frame of mind, and that they would not assess vindictive damages’.Footnote 108 Later, in 1920, Mr Patrick Hastings KC closed for the defendant by mockingly pre-empting his opponent’s inducement of the jury to greatly enlarge the damages. ‘The letter would be read again – louder; the desk might be thumped, and at the end they [the jury] would even be asked to give exemplary damages to the “little” man who could afford to come here with the most eminent counsel – with the loudest possible voice’.Footnote 109 Audible laughter prompted a clearly amused Darling J to ask from the bench: ‘[w]hile you’re in this prophetic vein, Mr Hastings, will you forecast the summing-up?’Footnote 110 Mr Hastings replied with some cheek: ‘[n]o; I can’t do that, but I’m safe in saying it will say nothing about exemplary damages’.Footnote 111
The trial reports further attest the extent to which the disapproval or, as it was occasionally more forcefully put, ‘reprobation’Footnote 112 expressed by greatly enlarged sums served to publicly vindicate plaintiffs who had chosen to sue.Footnote 113 Silvier v Druke,Footnote 114 tried in 1904 before Grantham J and a jury, is illustrative. In his closing speech for the plaintiff, a more temperate King’s Counsel ended by calling on the jury
to mark their disapproval of what had been done by giving the plaintiff, not vindictive damages, but such damages as would enable Mr Silvier to … go out into the world and say the matter was fought out before a jury of my fellow-countrymen and they gave me a verdict which entitled me to say I was not guilty.Footnote 115
Later, in a 1956 false imprisonment case, a self-represented Lieutenant-Commander similarly concluded his ‘final speech’ by calling on the jury for ‘exemplary damages in the order of £10,000’.Footnote 116 ‘Only the size of the amount’, The Times reports the plaintiff having told them, ‘will convince many people in this country of the wrong done to me’.Footnote 117
Significantly, in accounting for exemplary-vindictive damages, leading treatise writers reveal a close, even natural, connection between the civil jury and the awarding of such damages. By the eleventh (1920) edition of his tort treatise, Pollock remained of the view that enlarged damages ‘express[ing] indignation at the defendant’s wrong’ were those that ‘juries have been not only allowed but encouraged to give’.Footnote 118 In his tort text, Winfield followed Pollock insofar as exemplary-vindictive damages ‘represent the jury’s indignation at an especially outrageous attack on the plaintiff’s security, or at wanton misconduct on the defendant’s part’.Footnote 119
The conception of damages enlargements as involving the exercise of a quasi-judicial adjudicative power is occasionally reinforced by trial judges. In Butterworth, for instance, McCardie J opined that, in assessing adultery damages for the loss of the wife’s actual value to her husband, ‘the powers of the assessing tribunal are far more limited than in a case where exemplary damages may be given’.Footnote 120 In his summing-up of the evidence at a 1928 trial in the King’s Bench Division, Roche J focused on the particular aggravating circumstance that the defendant had denied the plaintiff an apology for what was a ‘most malicious’Footnote 121 libel. In ultimately instructing the jury on damages, he declared it ‘in the power of the jury to make him pay for the privilege of not being man enough to say … [sorry] himself’.Footnote 122
(b) The late appearance of judicially determined exemplary-vindictive damages
In 1933, the Administration of Justice (Miscellaneous Provisions) Act passed into law. Applying only to the King’s Bench Division, Chapter 36 stipulated that civil trial by jury would, only if applied for, be ordered in cases of fraud, libel, malicious prosecution, false imprisonment, seduction or breach of promise.Footnote 123 In all others, it would be in the court’s ‘discretion’ to order that a case ‘be tried either with or without a jury’.Footnote 124 Whereas the 1883 reforms had substantially left the civil jury’s fate in litigants’ hands, those of 1933 left it substantially in the judges’ hands. According to the Cambridge law lecturer, Richard M Jackson, the significance of the latest reforms to the mode of civil trial in England was to ‘take … away any absolute right to jury trial’.Footnote 125 The effect would be to hasten an already fading demand for jury trials among civil litigants. So much so that, by 1956, Devlin J could declare in his Hamlyn Lecture that ‘[t]he popularity of trial by judge alone is now decisively established’.Footnote 126
Importantly, the first juryless tort trials in the King’s Bench Division at which counsel are reported to have called for exemplary-vindictive damages do not appear until after 1933.Footnote 127 The very first may have been Meader v Reginsky,Footnote 128 as reported in The Times in March 1938. The Nazi-saluting German wrestler, Karl Reginsky, brutally assaulted a referee in a dressing room at Paddington’s Seymour Hall after having been disqualified from a match, which had ‘descended into a sort of animal contest’.Footnote 129 Counsel for the plaintiff’s submission before Charles J on what were labelled ‘exemplary’ damages rather resembled one calculated to induce a jury (had there been one) – ‘the moral effect on the sport if a referee was assaulted’.Footnote 130 Yet, on balance, the post-1933 trial reports attest a discernible shift towards a less populist, more legalistic, advocacy on exemplary-vindictive damages. For example, in a 1939 case of conspiracy, assault and false imprisonment, the plaintiff’s counsel opened before Tucker J, sitting alone, by submitting that ‘a very cruel and high-handed wrong had been done’.Footnote 131 In conclusion, counsel is reported to have ‘suggested that the case was one of those in which the law encouraged the giving of exemplary and punitive damages’.Footnote 132 Similarly, in 1956, it was submitted, this time before a lonesome Byrne J, ‘that once his Lordship had heard the facts he might come to the conclusion that it was a case for exemplary or punitive damages’.Footnote 133
The trial reports further attest a more cautiously legalistic judicial engagement with such submissions. This engagement was surely necessitated by the fact that, when exemplary-vindictive damages were determined by judges alone, they needed to give reasons for awarding, or not awarding them.Footnote 134 In Constantine, for example, Birkett J (who had also sat without a jury), did not ultimately award the humiliated and distressed cricketer the ‘exemplary’ damages which his trial counsel had sought. His reason was that ‘[h]e did not feel on the authorities that he could do that, having regard to the exact nature of the action’.Footnote 135 Birkett J’s cautiously legalistic engagement with counsel’s ‘exemplary’ damages submission evokes the county court judge Mackenzie D Chalmers’ earlier defence of the civil jury. In Chalmers’ view, that it gave no reasons for its verdicts – including as to their amount in damages – was one of the civil jury’s ‘strong points’.Footnote 136 As for judges being ‘compelled’ do so, he spoke from personal experience. ‘A judge is always embarrassed by the feeling that his decision more or less creates a precedent. He hankers after consistency. The ghosts of past decisions rise up before his mind, and cases yet to come cast their shadows before them. The jury are haunted by no such spectres’.Footnote 137
From the viewpoint of trial judges, however, far more difficult than reasoning to a conclusion about whether the law permitted the recovery of exemplary-vindictive damages, was ultimately ‘fix[ing] in financial phrases the amount’Footnote 138 of any such award. This surely explains why, throughout the entire examined period, they remained all too happy for the difficulty of assessing such damages to fall to the jury tribunal. At an 1888 libel trial, for example, the plaintiff’s counsel ended his closing speech by asking the jury for ‘such a sum as would mark their sense of the defendant’s conduct’.Footnote 139 In beginning his summing-up, a clearly relieved Wills J began by confessing ‘that the case was eminently one for the jury, and he was glad they had to decide it and not he’.Footnote 140
It was not until well into the twentieth century that the difficulty of assessment began to grudgingly fall to judges. Speaking of enlarged adultery damages to be strictly awarded as a ‘legal solace’, McCardie J wished he ‘could avoid dealing with [it]’.Footnote 141 In Rook v Fairrie, less than a decade after the 1933 reforms, Atkinson J, sitting in the King’s Bench Division, similarly admitted that it was when asked to enlarge damages in libel cases ‘that a judge longed for a jury’.Footnote 142 Yet, closer inspection of the trial reports suggests that in fixing exemplary-vindictive sums, trial judges were very cautious about having to – as Lord Halsbury LC had earlier supposed they must – ‘stand in the place of the jury’.Footnote 143 In Rook, Atkinson J was of the view that, given he alone had tried the plaintiff’s aggravated libel case, any enlarged sum was open to being fixed rather more ‘judicially’.Footnote 144 As he explained:
A jury can only indicate its view by the size of the sum that it gives as damages, and I think it very likely that a jury would have said: ‘We are not allowed to say what we think about this case, and so we will give a very big sum, which will indicate what we think.Footnote 145
Stable J had made the same point more vividly the previous year: ‘[a] jury could only express their view of a case in pounds, shillings, and pence, and awarded exemplary damages for that purpose’.Footnote 146 A judge, by contrast, ‘could express his views in terms much clearer than money’.Footnote 147 Thus, in Rook, Atkinson J justified his moderate enlargement of the damages on the basis that ‘I am a judge and I have been able to indicate what I think of the case’.Footnote 148 Indeed, reports of other juryless tort trials reveal judges often justifying their more moderate damages enlargements by confidently noting ‘that if the action had been heard before a jury they would have awarded a much larger sum’.Footnote 149
Furthermore, in refusing to later interfere with Atkinson J’s £550 damages award on the ground that it was not large enough, Sir Wilfrid Greene MR thought it inevitable that judicially enlarged tort damages would be ‘in important respects different’Footnote 150 from those juries enlarged. ‘[A]lthough the same elements are always present’, he supposed that ‘the method in which they ought in any individual case to be treated may well be different’.Footnote 151 It is tempting to speculate that, for the Master of the Rolls, any distinctly punitive element would be, if not less common, then perhaps less prominent.
Hence, towards the end of the examined period, it is clear that trial judges made judicious use of the giving of reasons as a way of dealing with the difficulty of fixing sums by way of exemplary-vindictive damages. The effect, it may be suggested, was for the disapproval (if not indignation) of aggravated tortious wrongdoing to be more legalistically expressed through a reasoned judicial determination as to damages, rather than through the exercise of a jury’s blunt power over the counting of money. Scott LJ may be plausibly read as having intimated as much in the 1944 false imprisonment case of Dumbell v Roberts. Footnote 152 In language suspiciously similar to Winfield, he supposed that ‘in so far as they [the damages] represent the disapproval of the law – historically of a jury – for improper interference with personal freedom they may be “punitive” or “exemplary”’.Footnote 153
(c) The persistent tendency to provide untheoretical instruction on the law
Reflecting on the law concerning aggravation of damages as it had stood before 1964, Lord Wilberforce declared that it ‘simply entrusted the fixing of damages to juries upon the basis of sensible, untheoretical directions by the [trial] judge with the residual check of appeals in the case of exorbitant verdicts’.Footnote 154 As has been seen, the instruction that trial judges increasingly gave to juries often went beyond merely reassuring them that they could account for particular aggravating evidence, to articulating the ‘contumelious’Footnote 155 wrongs they would need to find proven in order to be permitted to enlarge the plaintiff’s damages.Footnote 156 Thus, in instructing a jury on what he labelled ‘exemplary’ damages in Abbott v Garrould, in 1923, Hewart B reportedly began his summing-up by telling them that, if they were satisfied by the plaintiff’s aggravating evidence, ‘it was plain that she had been treated with a cynical disregard of what was due to her; her dignity had been affronted, and her rights invaded’.Footnote 157 In so instructing juries in aggravated cases, however, trial judges can be seen to have been motivated by more practical than theoretical concerns. Their main concern was that, before submitting the plaintiff’s aggravated case to them for their verdict, juries clearly understood that it was one in which they might enlarge the damages beyond the ‘pecuniary loss the plaintiff had suffered’,Footnote 158 and, therefore, ‘for the wrong done’.Footnote 159
The result was for trial judges to quite happily leave the law concerning aggravation of damages rather ill-defined in one critical respect. Where definition remained especially lacking was in respect of the elements – however distinct in theory – that exemplary-vindictive damages awards might ultimately comprise. In fact, the still overwhelmingly jury instructions in which the loose ‘exemplary’ and ‘vindictive’ labels continue to appear suggest that more important than whether the plaintiff would be consoled with a view to being fully compensated, or the defendant punished (exemplarily or vindictively), was for indignation at the worst of tortious wrongdoing to be markedFootnote 160 by those entrusted to do so. As much comes through in The Times report of the Lord Chief Justice’s ‘exemplary’ damages instruction in Abbott. In ultimately submitting the plaintiff’s aggravated case to the jury, Hewart B assured them, somewhat platitudinously, that,
if they thought it right to do so, [they] could mark their sense of what was done by giving exemplary damages, so as to make it plain that the conduct that was complained of was something which they reprobated – damages which would show that that was the kind of behaviour that a British jury would not tolerate.Footnote 161
Furthermore, even in the very few (reported) instances of judges more cautiously instructing themselves on exemplary-vindictive damages, they very rarely appeared to have been so theoretically minded as to separate out the consolatory and punitive elements.Footnote 162 To the extent that self-instructing judges identified these elements beyond simply using the historical labels, it may come as little surprise that the weight of emphasis tended to lie, however subtly, with the consolatory. Before awarding ‘£500 exemplary damages’ at a 1947 assault trial, for example, Wrottesley J had noted that the plaintiff’s aggravating evidence had satisfied him of ‘the defendant’s unlawful and high-handed behaviour and … that he had shown not the least contrition to the plaintiff, who had suffered as a result’.Footnote 163
As for why trial judges, even when sitting alone, were no more theoretically inclined to define the law concerning aggravation of damages by reference to the elements comprising exemplary-vindictive damages, the best explanation is that they continued to conceive themselves as being rather unnaturally ‘called on to fulfil th[e] function of a jury’.Footnote 164 At the beginning of the examined period, and despite instructing a jury that the plaintiff’s case was not, in law, one ‘for vindictive damages’, Field J conceded ‘that the principle of damages in cases like the present was not very well-defined’.Footnote 165 He even told the jury that ‘perhaps this was purposefully left so’.Footnote 166 His reason is suggestive of what Lord Halsbury LC would soon solemnly hail ‘the constitutional tribunal’,Footnote 167 and which, well into the twentieth century, many civil litigants still preferred for the determination of damages. ‘People’, Field J supposed, ‘did not like such things to be judged of merely by a lawyer’s mind’.Footnote 168
What is more, appellate judges were no more minded to unmingle the consolatory and punitive elements solely because they were distinguishable in theory. Throughout the examined period, the grounds on which enlarged damages in aggravated, usually tort, cases came under appellate review were twofold. As Lord Wilberforce later noted, the first and most utilised ground was that the enlarged sum that (overwhelmingly juries) had assessed on account of a plaintiff’s aggravating evidence was excessive, or ‘exorbitant’. The second was that the trial judge had erred in instructing a jury that a plaintiff’s aggravated case was one in which damages larger than their actual, typically pecuniary, loss could, in law, be recovered.Footnote 169
In determining either of these two grounds, appellate judges showed some interest in more clearly defining those damages that were, as Collins LJ put it at the turn of the twentieth century, ‘in character “vindictive” in the legal sense’.Footnote 170 Yet, by the middle of the century, they appear to have remained of the view that ‘[i]t matters not what you call the damages, exemplary or some such name’.Footnote 171 What really mattered was that, in practice, such damages enlarged upon those awarded by way of compensation for such loss (or injury) that a tort plaintiff could actually prove to have suffered. Thus, in determining an appeal for excessive libel damages in 1908, Sir Herbert Cozens-Hardy MR declared it ‘well-settled that in an action for defamation the jury, in whose province the assessment of damages specially lay, were not limited in any way by the amount of pecuniary loss actually proved’, and so ‘[t]hey might give punitive damages’.Footnote 172 On occasion, appellate judges can also be observed articulating the kind of tortious wrongs to which the substantive legal doctrine of exemplary-vindictive damages would apply. In 1922, in Cruise v Terrell, for example, Scrutton LJ affirmed that ‘in cases of high-handed or insulting conduct exemplary damages have been awarded and allowed to stand’.Footnote 173
Until the end of the examined period, however, appellate judges remained less concerned with the elements – no matter how theoretically distinct – comprising enlarged tort damages awards. Indeed, to have become too concerned with them must have entailed, in Lord Sumner’s arresting phrase, a certain ‘sacrifice of dignity’.Footnote 174 In 1926, in Admiralty Commissioners v SS Chekiang, his Lordship wondered for how much longer the enduring conception of tort damages as a ‘jury question’ could excuse the kind of ‘platitudes and rules of thumb’,Footnote 175 which continued to pass as legal instructions. In his view, appellate judges needed to do more to ensure that, in many more tort cases, damages ‘be measured under a proper direction, as to what the law requires’.Footnote 176
Of course, Lord Sumner did not have the law concerning aggravation of damages in mind.Footnote 177 It is clear that appellate judges regarded this area of civil damages law as exceedingly limited in terms of what it could require in the way of instruction on the assessment (or ‘measurement’) of the damages to be enlarged. Indeed, as Scott LJ lamented in refusing to interfere with an allegedly excessive false imprisonment verdict, ‘there was no fixed measure’Footnote 178 – no, in Pollock’s description, ‘numerical rule’Footnote 179 – by application of which such sums (whether by way of solatium for further non-pecuniary injury to feelings, or exemplary-vindictive punishment) could be assessed.
In the minds of appellate judges, therefore, the elements of consolation and punishment were inherent in the ‘undignified’ difficulties of fixing enlarged sums upon evidence of aggravated wrongdoing. This helps explain their persistent tendency to conceive the assessment of the exemplary-vindictive damages in which these elements often intermingled as laying with ‘the power of a jury’.Footnote 180 A striking example is the 1902 case of Nesbitt v Parrett,Footnote 181 in which a jury awarded a Kentish Vicar allegedly excessive damages in the sum of £1,100 for having been libelled in the local gazette. In the Court of Appeal, Vaughan-Williams LJ observed that, given the seriousness of the defamatory imputation, much of that sum could not have been ‘based upon pecuniary loss sustained by the plaintiff’.Footnote 182 Instead, it must have been ‘given in the exercise of a power which the jury had to award exemplary damages’.Footnote 183 For this reason, ‘it would be wrong to interfere with their verdict’.Footnote 184
Thus, as for what the law concerning aggravation of damages required, appellate judges only helped sustain the civil jury’s empowerment over the elements comprising damages enlargements. The result was for a substantive ‘rule of thumb’, by which trial judges concluded whether a tort plaintiff’s case was ‘one for exemplary [or vindictive] damages’,Footnote 185 coupled with ‘platitudes’ that a jury might ‘mark their sense’Footnote 186 of the defendant’s wrong, to continue to pass in the way of legal instruction.
Conclusion
This paper has used legal history to better understand the controversy in which the modern post-Rookes law concerning aggravation of damages remains embroiled in England. It has suggested that the key to better understanding the controversy lies in explaining the Janus-like attitude in which the old law puzzlingly persisted – at least until 1964. The puzzle is best explained by the historical common law’s enduring empowerment of civil juries to account, in damages, for evidence of aggravated tortious wrongdoing.
As has been seen, the intermingling of the consolatory and punitive elements in enlarged awards of tort damages was itself symptomatic of their sharing this same source of proof. Unlike the actual, typically pecuniary, loss (or injury) that tort plaintiffs could prove to have suffered, evidence of aggravated wrongdoing was the most difficult to translate into monetary terms. The result was for English judges to continue to conceive the sums to be assessed by way of so-called ‘exemplary and ‘vindictive’ damages as involving a quasi-judicial adjudicative function to be fulfilled – indeed, a power to be exercised – very naturally by juries.
Importantly, this conception endured despite fading popular demand for juries as the preferred mode of civil trial into the twentieth century. As this paper has further shown, it was in those tort cases in which plaintiffs often led aggravating evidence where demand for jury trial remained high. This is attested by the natural connection between the ‘exemplary’ and ‘vindictive’ labels and trial by jury, especially in the Queen-King’s Bench Division. Continuous with the period before the judicature legislation, such loose punitive labelling by advocates typically aimed at inducing the popular tribunal to express its indignation at aggravated wrongs in the moneys to be counted.
It was not until well into the second quarter of the twentieth century that trial submissions on exemplary-vindictive damages began to be put to judges sitting without juries. But as has been seen, trial judges were very cautious about standing in a hypothetical jury’s stead in determining the damages to be awarded in aggravated tort cases. They expressed what they thought about what a defendant had done as a reasoned way of dealing with the difficulties of fixing enlarged sums.
Yet, even when enlarged damages increasingly began to fall to trial judges to determine, they gave themselves much the same untheoretical instruction on the substantive law concerning aggravation of damages as they had given – and overwhelmingly still gave – juries. Indeed, whether sitting with or without them, instruction on this area of civil damages law remained practically concerned with establishing that, given the ‘contumelious’ kind of wrong the defendant had committed, damages larger than what the plaintiff could prove to have actually lost could, in law, be recovered. But because there was no measure by which enlarged sums themselves could be fixed, trial judges left unaddressed the theoretically distinct consolatory and punitive elements intermingling in such sums. And for their part, appellate judges were no more minded to define the law in such a way as to definitively align it, either with a punitive or full compensatory theory.
This, of course, was until Lord Devlin’s speech in Rookes. Yet, as this paper has also shown, theoretically minded attempts at addressing the intermingling of the consolatory and punitive elements long pre-date the early 1960s. By the middle of the twentieth century, the consolatory element had risen to such prominence that calls were being made for it to be severed and reallocated under the alternative ‘aggravated’ label. Perhaps the real controversy in Rookes lay in Lord Devlin’s sense that the reallocation of the consolatory element to ‘aggravated’ damages would leave a much depleted, distinctly punitive, element alone in exemplary-vindictive damages. So much so that such damages – now properly called – could henceforth only be very exceptionally recovered in tort. The controversy continues.
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