Date: Fri, 13 Sep 2002 14:10:15 +0100

From: Gerard McMeel

Subject: New PC Decision on Punitive Damages

Am I the only one puzzled by the fact that Lords Hutton and Millett are dissenting, whereas Lord Millett is not listed as attending the hearing! Some mistake surely? How bare was the majority?

Gerard McMeel

On Fri, 13 Sep 2002 08:39:42 -0400 Jason Neyers wrote:

Dear Colleagues,

Another interesting case of great importance has just been released by the Privy Council. In A. v. Bottrill, http://www.privy-council.org.uk/files/pdf/JC%20Judgment%202002%20-%20No.44.pdf, the PC was asked to decide whether an award of punitive damages might be given for mere inadvertent negligence. By a bare majority, they found that it could where that negligence was objectively outrageous.

In contrast, the dissent forcefully and lucidly argued that since the purpose of punitive damages was to punish, they might only be awarded if subjective mens rea was present.

For what it's worth, I find the reasoning of the majority to be strange and strained and that of the minority to be the more compelling. More compelling that is, if one accepts that there might be a residual role (i.e. for situations not covered by criminal legislation) for a common law court to punish those who would seek to use the court's rules in the furtherance of their malicious wrongs.

Cheers,

Jason

----------------------
Gerard McMeel
University of Bristol

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